Law Updates for March 26, 2010

Farinacci, 35 FLW 608, 4th DCA, Hearsay: Where def was charged with Lewd and Lascivious fondling the clothed buttocks of a child under 12, it was harmful error to permit the detective to testify and demonstrate the victim's description of them manner in which the def touched him.

M.D., 35 FLW 610, 4th DCA, Constructive possession: Evidence was insufficient to establish that juvenile had dominion and control of marijuana found near him at the time of the arrest. Juvenile's statement that he was in the utility room "to smoke" was not enough to prove juv constructively possessed marijuana. Juv theory was he was smoking tobacco, not marijuana. This was reasonable, and circumstantial evidence was not inconsistent with a reasonable hypotheses of innocence.

Good, 35 FLW 611. 4th DCA, Court can withhold adjudication for two pending felonies pled at the same time. Two concurrent felony pleas, even though one incident was before the other, is not considered a prior case.

Mead, 35 FLW 617, 4th DCA, Intercepted communications: Law enforcement officer's direction to the victim to record any future conversations with the suspect was sufficient even if the ofc is not present. Brings it under the exception of 934.03(2)(c). Language of statute does not require active police involvement or presence during the recording session.

Hernandez, 35 FLW 618, 4th DCA, It was error to permit state to call the def's wife to the stand as a witness for the purpose of impeaching her with the transcript of a taped phone which was inadmissible hearsay. Tape was not admissible as a past recollection recorded where witness was unable or unwilling to attest to the accuracy of the tape recorded conversation.

D.B.P. 35 FLW 629, 5th DCA, search and seizure/ stop and frisk: Juvenile's act of putting his hands in his pocket during a stop for a non-criminal infraction in a high crime area was not sufficient to provide reasonable suspicion to justify the pat down.



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