Law Updates for April 15, 2011

Rogers, 36 FLW 725, 4th DCA, Protective sweep - Officers responded to a neighbor's 911 call reporting men and women arguing, throwing things, and being violent, entered the residence without a warrant when they heard the male voice cursing and ordering someone not opening the door.  Trial court erred in denying the Motion to Suppress cocaine and drug paraphernalia seized from the locked bedroom within the residence.  The search of the premises were impermissibly broad

Ferguson, 36 FLW 727, 4th DCA, Third Party consent - Court properly found that def's girlfriend, a co-occupant of the apt, validly consented to the ofcs entry into the apt where the girlfriend possessed a key to the premises, made sworn statement to the ofcs she lived with the def of the apt, kept substantial amount of clothes in the residence and was allowed to be alone in the apt and was so on the night of the incident.  Fact that the girlfriend was not on the lease is not dispositive of her claim of actual authority given the fact that the def's name was not on the lease.  No error in denying motion to suppress of gun found in plain view in the bedroom.

Washington, 36 FLW 733, 4th DCA, Good case - Trial court was mistaken in believing it did not have discretion to reinstate probation without grounds for a downward departure, where the original sentence was a downward departure.  Remand for re-sentencing so the court may consider def's request to reinstate probation, court can reinstate under 948.06 without it being considered a downward departure, Harrison, 589 So. 2d 317, 318(5th DCA 1991)

Jones, 36 FLW 741, 5th DCA, Continuance - Abuse of discretion to deny motion for continuance filed by newly appointed counsel where counsel clearly had insufficient time and resources for trial.  Although def failed to waive speedy trial in this case, speedy trial was not an issue.  Good case for this issue where judge forced the new lawyer into trial quickly.

The Law Offices of Roger P. Foley,P.A.