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UPDATES TO FLORIDA LAW
(with thanks to Barry Butin)
August 1, 2008
Davis, 33 FLW 188, 4th DCA, Burglary occupied structure-when def lawfully in open convenience store, then went into employees only room and took $400, conviction for burglary of a structure improperly enhanced to burglary of an occupied structure, statute unclear if it is occupied, 775.021(1) with these facts rule of lenity in favor of the accused, Johnson v. State held that theft in a non-public area is burglary of structure ambiguity whether crime could be for an occupied structure
Morris, 33 FLW 1851, 5th DCA, Prosecutor argument that an innocent person would have spoke up and protest his innocence improperly shifted the burden by arguing an innocent person would have taken the breath test to prove his innocence-new trial-you think
July 25, 2008
Shreith, 33 FLW 1784, 4th DCA, self-defense-trial court correctly sustained objection to 911 calls originating from convenience store where def worked to establish facts which would help jury understand the self defense claim by demonstrating what the def was thinking at the time of the incident-calls were hearsay and no evidence that def knew of the previous incidents reflected in calls-no error in precluding def from questioning detective about police reports about three prior incidents involving encounters between the def and third parties-prior incidents not sufficiently similar to crime charged to have any probative value with regard to reasonableness of def's conduct with victims in this case
Thompson, 33 FLW 1793, 3rd DCA, police stopped def vehicle fit the description of person who committed armed robbery, arrested for DUI transported to DUI intake room and refused to submit to breathalyzer test, immediately invoked Miranda, trial court properly suppressed the confession which was given to the detective who initiated questioning after the def spent the night in jail-when invoked right to counsel not invoking it as to whether or not to blow into the machine-invoked Miranda in DUI intake room, could not be questioned as to any matter-fact that police initiated questioning in jail creates a presumption of coercion in def subsequent waiver and does not dissipate the statement with the later reading of Miranda
Stephens, 33 FLW 1814, 2nd DCA, L & P, evidence that the def was in parking lot of closed business in early morning hours and moved into shadows and crouched behind a car when saw patrol car was sufficient to prove that def was loitering and prowling in manner not usual for law abiding citizens-state failed to prove second element, that his conduct did not warrant a justifiable and reasonable alarm or immediate concern for safety of persons or property located in the vicinity- fact that ofc subsequently discovered evidence of other crimes does not alter court's analysis, L & P must be complete before any police action occurs-discharge def for L & P
July 18, 2008
Davila, 33 FLW 1715, 2nd DCA, evidence that the def was present at the scene of robbery committed by others and def had knowledge that the robbery was about to be committed was insufficient to sustain the conviction where there was no evidence that the def committed any act to assist or abet the others in committing robbery-error deny JOA
Wilson, 33 FLW 1734, 3rd DCA, state impermissibly commented on def's right to remain silent at end of closing argument, no merit to state's contention that statement did no more than state the obvious, case law in accord
Cohen, 33 FLW 1740, 3rd DCA, Perjury conviction reversed where elicited testimony constituted an opinion, which is an inappropriate basis to support perjury conviction
Lee, 33 FLW 1760, 1st DCA, error to deny dispositive motion to suppress incriminating statements made by def in his home to deputy sheriff-Def was in custody for Miranda purposes where seventeen year old def was subject of investigation for having a sexual relationship with underage girl and was kept out of school to submit to questioning; purpose of interrogation was to obtain incriminating statements; although parents were initially present, deputy had them step outside, leaving deputy to question def alone; manner if interrogation was insistent, authoritative, and repetitive; def was confronted with evidence of guilt when deputy stated victim first lied then admitted that she and the def had sex, and deputy had obtained bed sheets and underpants from the victim, and deputy never advised the def of Miranda rights or took any measures to mitigate coercive aspects of questioning, such as informing the def he was free to leave or that he could terminate questioning
July 11, 2008
Kasischke, 33 FLW 481, S. Ct., sexual offender probation, 948.03(5)(a)(7) prohibits one on probation or c.c. from viewing, owning or possessing any pornographic....including computer services that are relevant to offender's deviant behavior-error to revoke c.c. for violation of this condition where pornographic materials(adult) possessed by def did not relate to his deviant behavior(15 year old and oral sex), Legislative History
Wyche, 33 FLW 509, Fla, consent-voluntariness, totality of circumstances the court did not err in denying the motion to suppress to suppress saliva swabs and DNA test results, although police investigator, who at the time was investigating a sexual assault case in which def was ultimately exonerated obtained def consent by telling him his DNA was needed in the investigation of a fictitious burglary and eventually charged in another burglary case based on the sample received-circumstances did not involve any threat or promise that might have induced def's consent-district court ruling not in conflict with a 4th DCA ruling where a trial court found that the def's consent was coerced because in that case, investigating officer told the def he was a suspect in a rape, which was fictitious and that a saliva sample would exclude him from a rape investigation-stigma of rape investigation is circumstance to consider whether the consent was voluntary or coerced, McCord, 833 So. 2d 828(4th DCA 2002)
July 4, 2008
Strohm, 33 FLW 1645, 4th DCA-prior acts of child molestation-def entitled to new trial where state was permitted to introduce testimony of victim of rape for which the def was previously convicted-rape committed 17 years before and was a stranger to the def and whom def vaginally penetrated was substantially dissimilar to the instant case, which involving the def sexually abusing his eight year old daughter in a form other than vaginal penetration over a eight month period
Hosang, 33 FLW 1646, 4th DCA, prosecutor's comments suggesting reasons why victims of home invasion robbery might not have noticed the def's tattoos were improper given that the case involved contested id was not harmless(why left out of the testimony of the def was that he got the tattoos 18 months later)
Burgos, 33 FLW 1672, 3rd DCA, release c.i., court erred in ordering the state to disclose the identity of the c.i. where def provided neither allegations or evidence that the detective falsified evidence in his affidavit in support of search warrant and def provided nothing to suggest that disclosure is essential to the fair determination of the cause-bare allegation that def cannot prepare his case without the disclosure of the c.i. is insufficient
Napoleon, Jr., 33 FLW 1678, 1st DCA, vehicle stop-traffic infraction(cutting in front a vehicle and inoperative license plate light)-continued detention for twenty minutes in order for a sniffing dog to arrive-no traffic citation written-field interview of vehicle occupants was illegal-no justification for the continued detention was illegal despite the tattoos on def's cheeks and tow people in the back seat having matching bandannas-cites cases
Fowler, 33 FLW 1679(1st DCA), sexual battery-child under 12-no error in denying JOA where victim could not point out the def in court where there was circumstantial evidence concerning the identity of the perpetrator sufficient to support the conviciton
June 27, 2008
Oliver, 33 FLW 1582, 2nd DCA, Plain view of someone's backyard after anonymous tip with no reasonable suspicion to support warrant less entry into a backyard surrounded by a chain-link fence-saw def drop a baggie and other move hands in furtive motion-unable to id baggie's contents with certainty from her vantage point outside the fenced yard and illicit nature of the baggie was not immediately apparent and only discoverable upon closer inspection after warrant less entry
Armstrong, 33 FLW 1594, 3rd DCA, Violation of plea agreement-cooperate by providing truthful testimony consistent with his sworn statement info on a co-def participation in a drug trafficking case-def not breech a plea agreement by writing a letter to co-def he had earlier implicated, advising the co-def to go to trial as he would take the blame-plea agreement did not have condition of no contact with the co-def, state decision not to elicit def testimony in co-def trial because def letter created impeachment material is not evidence that def breached the plea agreement
Herrera-Fernandez, 33 FLW 1604, 4th DCA, error to deny motion to suppress found in def garage during a warrant less search where def did not consent to LEO entering the home and no exigent circumstances were found to exist-unreasonable seizure violated the 4th A.
Tribble, 33 FLW 1608, 4th DCA, trial court imposed unlawful sentence when it withheld adjudication and imposed court costs-withhold adjudication can only be done in a felony case where the person is placed on probation
Joseph, 33 FLW 1610, 4th DCA, voir dire challenge for cause should have been upheld where def went into trial with a presumption of guilt, reversible error, where def had to take an objectionable juror as he had to use a strike, even though juror said he could be fair and impartial coupled with above statement there was reasonable doubt as to juror's ability to believe the def was presumed innocent
June 20, 2008
M.D.S., 33 FLW 1502, 2nd DCA, evidence that the def observed juvenile in a parking lot of an apt complex wiping passenger door handle of a parked vehicle with a cloth, computer check revealed vehicle was stolen, car keys found in juvenile's pocket, and that the hood of the car was hot, recently driven and parked insufficient to support adj. of delinquency for GT of motor vehicle. Evidence did not exclude def reasonable hypothesis of innocence that he found keys in the parking lot and pocketed them with the intent to return them to the complex management
Nunes, 33 FLW 1503, 2nd DCA, trial court erred in denying the def statement made to the detectives and Asst. State Attorney during plea negotiations where the def made his statement with subjective expectation to negotiate a plea and def reasonably expected this was the beginning of the bargaining process given totality of the objective circumstances, 3.172(j), 90.410 does not require that the plea bargain be completed or written agreement begin before negotiations be excluded from evidence
Washington, 33 FLW 1512, 4th DCA, no error in trial court's denial in reference to false police report, filed by victim in unrelated matter-90.610 authorizes impeachment with only prior convictions-court declined to adopt false reporting exception to that general rule, 1st District agrees, 2nd District disagrees, certified to Fla. Sup. Ct.
Matul, 33 FLW 1514, 4th DCA, search and seizure-where def walked away from group of men and threw a water bottle as officers approached, and one of the officers inspected the bottle, ultimately finding that the bottle contained a hidden compartment with crystal meth, trial court erred in granting def motion to suppress
Soto, 33 FLW 1526, 4th DCA, Agg Assault, Limitation of actions, error to deny Motion to dismiss where the statute in effect at the time of the incident required the state to commence the prosecution for any felony within 3 years of the commencement-under the old statute prosecution did not commence until state executed the capias without unreasonable delay and if def asserted that court was required to consider the state's attempts to locate the def as well as the def's absence from the state-state failed to offer any evidence to contradict the def's assertion that capias did not toll statute of limitations because it was not served and state did not make a diligent effort to locate him-remand to discharge the defendant
June 13, 2008
Young, 33 FLW 1445, 4th DCA, consensual encounter, error to deny motion to suppress marijuana found on the def where encounter was not consensual and there was no reasonable suspicion or pc to justify the stop-def expressed a clear desire not to engage into a consensual encounter when he walked away from the officer who was hailing him-where def ignored one ofc and walked away and another ofc obstructed the def's movement while the first ofc continued to call him over, encounter was not consensual, as reasonable person would not feel free to leave
Lindo, 33 FLW 1446, 4th DCA, Trafficking in Marijuana-package detention-UPS-temporary detention of package at UPS for a dog sniff was not unreasonable as to interfere in any meaningful way with the def packages, not a seizure within the meaning of the 4th A.-no seizure state did not have to establish reasonable suspicion-dog sniff not a search and 4th A. not implicated
Caldwell, 33 FLW 1485, 4th DCA, search and seizure-mere administration of Miranda warnings to potential suspect with whom the officer is engaged in consensual encounter does not, by itself, transform that encounter into investigatory stop-conflict certified, see Raysor 795/1071(4th DCA 2001)
Hines, 33 FLW 1493, 1st DCA, robbery with firearm-collateral crimes-where def was subsequently acquitted by a jury in another prosecution for possession, on the date of the armed robbery at issue in this case, of a firearm by a convicted felon, admission of evidence that defendant possessed the same firearm on the date of the robbery requires reversal of the conviction and remand for a new trial-question certified
June 6, 2008
Luyao, 33 FLW 1406, 4th DCA, trafficking in oxycodone, trial court erred in allowing state to present evidence regarding def's legal gambling for purpose of motive in trafficking as state to draw sufficient connection made between the gambling and alleged trafficking
McNeil, 33 FLW 1417, 2nd DCA, patdown-vehicle passenger-ofc did not have the authority to search the passenger in lawfully stopped vehicle for weapons absent reasonable belief that the passenger was armed and dangerous-error to deny the motion to suppress
Dubon, 33 FLW 1429, 1st DCA, statements of defendant-error to deny motion to suppress custodial statements where def said at least three times during custodial interrogations, "I have nothing to say" but officers continued to question him until he confessed-def's statement sufficient to invoke right to remain silent
Leroy, 33 FLW 1434, 1st DCA, ofc did not have reasonable suspicion to justify detention of the defendant for trespass investigation where def was sitting in his vehicle in area known for drug activity-officer "lit up" def's vehicle, approached def in confined space between two vehicles while in uniform. and was joined by 2 other officers. def was seized. seizure not lawful where there was no reasonable suspicion the def was committing, had committed or was about to commit a crime-fact that the def was sitting alone in a high crime area, standing alone was insufficient to establish reasonable suspicion-def consent to search was fruit of illegal police conduct was rendered involuntary
May 30, 2008
McDonnell, 33 FLW 1337, 1st DCA, where police went to private residence at 4 in the morning and asked for consent to search residence def refused consent to give consent to search, other ofcs remained at the scene when one ofc went to get a search warrant, and ofc asked for and received consent to search before the warrant was obtained, consent not voluntary(well-written opinion), totality of circumstances encounter took place at early morning lasted between one and a half and two hours, four officers present, because there was pc for issuance of the warrant for the residence ofc in process of obtaining the warrant when def consented ofc would have inevitably discovered evidence seized from the residence-GOOD DISSENT AS TO THIS ISSUE
Ellison, 33 FLW 1385, 2nd DCA, error to deny JOA where state failed to prove that def used deception or intimidation with intent to deprive elderly person of his funds, assets or property
T.R.T., 33 FLW 1387, 2nd DCA, vehicle stop-juvenile's actions of sitting in parked vehicle in alley behind vacant building in high-crime area in early morning hours and turning lights off then on again did not provide reasonable suspicion that juvenile was committing offense of L & P-not give rise to reasonable suspicion sop of vehicle was illegal and trial erred in denying dispostive motion to suppress-discharge case
May 23, 2008
Hernandez, 33 FLW 1292, 3rd DCA, DUI-Speedy trial-DUI charge was filed as MM in county court,state announces it was filing a felony information in circuit court, mm's were transferred to circuit court, state did not consolidate the MM'S with the felony or nolle pros the MM, county court retained jurisdiction and should have dismissed the MM when the 90 day speedy trial period expired-because a conviction for the current MM DUI is required to establish the crime of Felony DUI after 3 prior MM's DUI, current Felony DUI could not be sustained-trial court erred in denying motion to dismiss felony DUI charge based on expiration of speedy trial period in underlying misdemeanor DUI in county court
Paul, 33 FLW 1315, 4th DCA, comment by the prosecutor during closing argument that State has the burden of proving elements of crime charged beyond a reasonable doubt and if defense attorney wants to present theories of how she believes case to play out, there has got to be some level of proof that the prosecutor's witness was lying-comment improperly shifted the burden because it insinuated that in order to be found not guilty, def needed to prove the prosecutor's witness was lying, not harmless sole evidence was presented by the prosecutor's witness, curative instruction where court overruled the defense objection and stated to jury that the state is allowed to comment on the evidence
Munroe, 33 FLW 1314, 4th DCA, prosecutor comment on def failure to make exculpatory statement after police stopped her and found cocaine in her bag even if made prior to her actual arrest, unconstitutional comment on def protected post arrest silence, even though def testified she was silent after the cocaine was found in the bag that hse was too shocked to speak invited a limited degree of inquiry prosecutor's comments exceeded the scope when he suggested that instead of being too shocked to speak she should have been shocked enough to proclaim her innocence-harmful error, inference of guilty knowledge from def's exclusive possession of cocaine was rebutted by the evidence she successfully passed through customs and drugs not discovered and that she was traveling with an acquaintance who might have the cocaine in her bag as she stated
May 16, 2008
Gray, 33 FLW 1261, 4th DCA, error to deny motion to suppress physical evidence and statements made by the def after officer responding to BOLO immediately arrested him, handcuffed him and administered Miranda warnings where ofc lacked pc to make warrantless arrest-earlier consensual encounter in which a fellow officer, who later issued BOLO, observed def side-stepping diagnoally up driveway between two cars and asked def to come over and talk to him, def approached gave ofc his name and consented to a frisk by a second officer, and ofc allowed the def to continue on his way did not give the ofc reasonable belief that the def had committed or was committing the crime-facts and circumstances within the ofc's knowledge was insufficient to warrant reasonable belief that def was committing or about to commit a trespass-Fact that ofc who issued th eBOLO found black powder on the grass did not raise reasonable suspicion that def had been carrying the pistol on or about his person or had discarded it
Baker, 33 FLW 1264, 4th DCA, Def was erroneously convicted of child abuse where the state failed to present any evidence of the mental injury of the offense-there was no evidence that def's acts could be reasonably be expected to result in an injury to the intellectual or psychological capacity to the child, as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior
Byrd, 33 FLW 1275, 2nd DCA, Trial court abused discretion in denying Motion to Sever charge of agg stalking of def's former girlfriend from separate charge of agg battery of another victim where battery, which occurred prior to stalking, was not causally relating to stalking of def's former girlfriend
May 9, 2008
Hill, 33 FLW 1202, 3rd DCA, new trial where error in the following ways:
- state violate motion in limine where not mention high crime area and, error to introduce that police knew drug sales were taking place in the neighborhood
- def not testify and ofc only witness to the transaction, state comment in closing that evidence was uncontroverted and uncontradicted improper burden shifting comment on def right to remain silence
Rawlings, 33 FLW 1211, 4th DCA, Poss of cannabis with intent to sell or deliver-evidence that the def possessed 31 individual bags of marijuana with a total weight of 28.8 grams and this testimony was inconsistent with personal use ok, cf Phillips 961/1137(2nd DCA). conflict certified
Prince, 33 FLW 1211, 4th DCA, error to deny JOA GT Auto where state failed ot prove def anything other than a passenger in a stolen car.
May 2, 2008
Johnson, 33 FLW 265, Lab reports are testimonial when prepared for criminal trials and subject to Crawford and admission without the preparer's testimony is improper
Peters, 33 FLW 273, Crawford not apply to VOP or VCC revocation hearings
Belvin, 33 FLW 279, Breath test results pertaining to operator's procedures and administering the breath test operator's procedures and observations is testimonial and is subject to Crawford
Perkins, 33 FLW 1102, 1st DCA, search and seizure-plain feel-ofc conducting a pat down felt another object in the pocket after removing knife and ofc had to run the tips of his fingers over the object to determine that the object was a lump of powder cocaine or some other kind of narcotic, plain feel doctrine did not apply to validate search of def's pocket and seizure of cocaine wrapped inside folded up dollar bill-error to deny motion to suppress
Peterson, 33 FLW 1104, 1st DCA, Castle doctrine, no error in denying motion to dismiss where the def argued he had immunity from criminal prosecution pursuant to 776.032 because shooting occurred when def's brother assaulted him after being asked to leave the def's house-must demonstrate by a preponderance of evidence he is immune form criminal prosecution-def may raise claim pretrial and court determine of def has shown by a preponderance of evidence that immunity attaches-trial court may not deny motion just because factual disputes exist-trial curt applied the correct standard-def can submit to jury as affirmative defense
Barrett, 33 FLW 1126, 4th DCA, evidence did not support finding that def was armed during burglary as def broke into automobile dealership for taking something of value, found safe inside, which he loaded into a vehicle and hauled away from the scene, and opening the safe with a crowbar, found blank checks and loaded gun inside
Lewis, 33 FLW 1128, 4th DCA, trial court improperly shifted burden of proof to the def that he did not consent to a search, instead of determining issue upon totality of circumstances, including weighing credibility of officers testimony, which court itself questioned-trial court failed to weigh evidence and determine facts and merely shifting burden to the def to produce some affirmative evidence to disprove testimony of officers
G.M., 33 FLW 1145, 3rd DCA, fact that ofcs in unmarked car activated emergency lights so as to identify themselves as police officers before they pulled into public park behind vehicle occupied by juveniles did not convert consensual encounter into a seizure-no per se rule that use of emergency lights by police convert a police encounter into a seizure-conflict certified-juvenile did not see lights prior to ofcs exiting vehicle and smelling marijuana coming into vehicle in which juvenile was seated, activation of lights played no role in juvenile's actions and id not play any role in 4th A analysis of facts and circumstances here-no seizure occurred before establishment of reasonable suspicion and pc to arrest juvenile when ofc saw juvenile rolling a marijuana cigarette
Brocca, 33 FLW 1156, 3rd DCA, hearsay-sexual battery of mentally disabled adult-statements made by victim to mother are non-testimonial, admissible if state establishes factual predicate, witness either testifies or is determined to be unavailable and court makes finding on the record including basis for determining the reliability of v's statements-victim's statements to state attorney interviewer are testimonial and admission of such statement would violate the def right to confront the accuser unless the victim testifies at trial, or the v is unavailable or def had the opportunity for cross-exam
Walden, 33 FLW 1173, 4th DCA, error to deny motion to discharge based on filing case after 175 days and grounds def had to file notice of expiration of speedy trial was error-waiver of speedy trial in another case involving att murder charge from same fight had no effect on this case because the two cases involve distinct acts against separate victims
April 25, 2008
Kettell, Sr., 33 FLW, Fla Sup Ct, Shooting in to building-crime of wantonly or maliciously shooting into a building cannot be established solely by proof of the shooting itself-state must prove the shooting was wanton or malicious-error to instruct jury that statute is violated by person shooting into a building per se-error not harmless
Reynolds, 33 FLW 1043, 3rd DCA, conspiracy to traffic in marijuana, def erroneously convicted of trafficking no actual or constructive possession of marijuana found in warehouse in shrink-wrapped cardboard barrels in warehouse-def properly convicted of conspiracy as circumstantial evidence to prove an express or implied agreement between the def and another person
Palmer, 33 FLW 1054, 4th DCA, error to refuse to allow defense counsel to put before the jury the reputation of the victim for truth and veracity in the community where v's credibility was the heart of the defense and v's testimony was the only evidence linking the def to the shooting-not harmless where other witnesses denied def was at the scene of the shooting
Hill, 33 FLW 1055, 4th DCA, trial court properly suppressed evidence from canine sniff search because the search warrant were unlawfully executed where search was conducted prior to physical possession of executed warrants or where search was not conducted by the officer named in the warrants
Sanon, 33 FLW 1056, 4th DCA, statement made to the ofc by def's son who was not a witness at trial was testimonial and not a witness at trial, incriminating his father was testimonial and not admissible under Crawford v. Washington because there was no ongoing emergency, event described by the son occurred 20 minutes earlier and son did not seek the assistance of the police but rather ofc's approached the son, admissible of excited utterance is ultimately governed by Crawford
Lanier, 33 FLW 1059, 4th DCA, child abuse-no error in granting the def's sworn motion to dismiss where undisputed facts did not rise to the level of the conduct charged-teacher's act of stomping on one child's foot, positioning a child with ADD in small chair at the top of the steps and pushing chair toward the steps with her foot not an intentional act which could reasonably be expected to result in physical or mental injury, teacher was actually keeping eye on child rather than ignoring him at the time he fell over the edge and tumbled down the stairs
Bonus: Virginia v. Moore, 4-23-08, US Supreme Court; The police did not violate the 4th A. when they made an arrest that was based on probable cause but prohibited by state law, or when performed a search incident to the arrest. Driving with a Suspended license arresting ofcs under state law should have issued a citation and 4th A. not permit a search incident to a citation.
April 18, 2008
Grant, 33 FLW 964, 2nd DCA, neither plain view nor exigent circumstances justified ofc warrant less intrusion into def's property where ofc went to home to investigate a report more than 100 dogs were on the property, ofc had no evidence suggesting that any dogs were mistreated, and when no one answered the door ofcs peered over and through slats of six-foot privacy fence, saw only some chained or caged dogs, ofcs then walked through a gate and searched the property-illegality of initial search was not cured by def's consent to show ofcs around his property, given the fact that the ofcs had already searched the property, demonstrating to the def they had the absolute right ot search and his consent to any search was a mere formality which he could not refuse-court finding break in chain of illegality not proved by clear and convincing evidence and was in error
Pilieci, 33 FLW 966, 2nd DCA, magistrate had no pc to issue a search warrant in controlled buy case where buy was 29 days earlier on a single occasion with an unidentifiable amount of cocaine bought from an unidentified person-remanded for question of exclusionary rule whether ofc acted in good faith of issuance of the search warrant by the magistrate any material omissions in support of the warrant were knowingly or recklessly made and whether ofc in good faith with his training and experience would believe affidavit would actually supported issuance of the warrant
Lebron, 33 FLW 976, 3rd DCA, Statements of def-trial court properly suppressed statements by def prior to administration of Miranda warnings in response to ofc's statement "I hope you know what kind of trouble you are in" Court erred in suppressing Post-Miranda Statement where police did not engage in two-step strategy of questioning def prior to Miranda, Missouri v. Seibert, 542 U.S. 600 and no claim either statement was involuntary
Dawson, 33 FLW 978, 3rd DCA, double jeopardy after mistrial-no manifest necessity for mistrial-def silence or failure to object not waive constitutional prohibition of d.j. -state witness on vacation for two weeks not warrant mistrial where judge did not question of other possibilities
Langdon, 33 FLW 982, 4th DCA, 948 alternative sentence not proper for person with non-drug prior, GT, also 5 priors for possession where the most one can qualify with is "four" prior convictions
April 11, 2008
Garzon, 33 FLW 240, Fla, use of "and/or" conjunction between the names of the co-def's in jury instruction on substantive crimes together with standard principals instruction was not under the facts of the case here fundamental error, not preserved here by objection, principal instruction explained to the jury properly the only way to convict each defendant and properly communicated by the judge, state and defense counsel
Telfort, 33 FLW 918, 4th DCA, Fingerprint examiner testified that other fingerprint examiners, over defense objection, had compared fingerprint found at home burglary scene and verified the id of def left index finger-Improper bolstering was probably prejudicial, without a confession state would be hard pressed to make the error seem harmless
Greider, 33 FLW 949, 2nd DCA, Vehicle search-ofc who observed vehicle parked legally parked in public park with towels rolled in the window so the ofc could not see inside the vehicle and acted legally when he approached the passenger side to determine whether anyone was inside the vehicle-once it was determined that the occupant of the vehicle ws okay and not involved in criminal activity, ofc lacked authority to order the def to lower the driver's side window-error to deny Motion to suppress drug para. observed in plain view through driver's side window and drugs found in door compartment of vehicle and ofc opened the door and directed the def to step out.
April 4, 2008
Williams, 33 FLW 858, 4th DCA, evidence presented by the state failed to establish prima facie of guilt where police could only testify only they saw what they believed to be hand-to-hand transaction and that def received some amount of cash from the driver in one exchange-Although drugs were found in a particular car, and police observed an encounter and possible transaction between def and the car's driver, there was no evidence linking the drugs in the car to the def-error to deny JOA
Joseph, 33 FLW 864, 4th DCA, trial court abused it's discretion in limiting def's cross-exam of officers as to whether they had prior excessive use of force complaints filed against them-state's argument that is line of questioning is allowed only where the complaints have been substantiated is rejected-error not harmless here, def acquitted of one count, shed light on discrepancies in testimony or ofc's credibility, def had no prior record and def claimed excessive forcee in arresting her
Dixon, 33 FLW 865, 4th DCA, stop-consensual encounter at Amtrak train station-contact between def and detectives could not be characterized as consensual encounter where ofcs approached def as he came out of the ticket booth, and before police asked for permission to search def, they showed him their badges, told him they were narcotics detectives working at the train station and reason for contact was large problem with people smuggling drugs no train and asked def if he was riding the train and to produce his ticket-manner approached def, one from front and one form rear who passed def and as a result were tow ofc's in def's path, supported trial court conclusion that contact was not consensual and that reasonable person would not have felt to free to disregard detectives questions and request to produce ticket and simply proceed on his way-no error granting motion to suppress
Fehringer, 33 FLW 868, 4th DCA, trial court erred by prohibiting def counsel from proffering minor's victim testimony regarding a prior accusation of sexual assault she made against another man-Lewd and Lascivious conduct case-error not harmless-fact that victim did not recant prior allegation does not preclude the defense counsel from inquiring into this allegation-no error in denying def's motion in limine regarding def's conduct in text messaging, tickling, and telling victim to "take it out in trade", not evidence of collateral crimes, relevant evidence admissible as part of, or inextricably intertwined with, the crime charged
Johnson, 33 FLW 869, 4th DCA, error to permit state to bolster victim's ID of def as one of the perpetrators of burglary by allowing to victim to testify that hse had correctly identifed the co-defendant at co-defendant's sentencing-error not harmless where def's defense was Misidentification and there was no physical evidence to support state's charge that def participated in the burglary
Clark, 33 FLW 873, 4th DCA, error to deny JOA where state failed to prove that def knew the officer intended to detain him where the def ran across the parking lot jumped fence and disappeared, resisting ofc without violence thrown out
Robinson, 33 FLW 878, 2nd DCA, Search and Seizure, fact that the def was standing around with a group of men surrounded by the odor of burning marijuana did not give the police pc for search of def's person-def initially gave consent for search of his person and then withdrew consent did not give ofc pc to search for marijuana-error to deny motion to suppress
Hines, 33 FLW 898, 1st DCA, evidence-collateral crime for which the def was acquitted-where the def was charged with robbery with a forearm and possession of F/A by convicted felon, trial court abused discretion by admitting into evidence def's alleged possession of a firearm on a different date, a crime for which the def was acquitted
Woodard, 33 FLW 899, 1st DCA, Lewd ir Lascivious Molestation-evidence, other crimes, wrongs or acts, vague testimony of witness regarding an incident described only as a "sexual assault" committed on her by def 17 years before the charged crimes was erroneously admitted-not sufficiently similar to the charged offense
Reaves, 33 FLW 901, 1st DCA, Racing on Highway-316.191 is facially constitutional, conflicts with Wells, 965/834(4th DCA 2007)
March 28, 2008
Adams, 33 FLW 225, Fla, sex offender probation, even where the court order does not specify a deadline for completing the sex offender treatment program or how many attempts the probationer has to complete it, where a def enrolls in but fails to complete a sex offender probation, trial court may in it's discretion depending on the circumstances revoke the probation, def attended only one session before being terminated for two successive absences, even though told in advance two successive absences would result in its termination and def had the ability to pay for the sessions
Farmer, 33 FLW 797, 4th DCA, No fundamental error here where faulty jury instruction did no effect the verdict the state or defense did not mention the instruction during closing argument and instruction(self-defense, use of force likely to cause death or serious bodily injury is not justifiable if the def was attempting to commit, committing or escaping after the commission of an aggravating battery
Doughty, 33 FLW 799, 4th DCA, carrying concealed weapon without a permit, private conveyance exception does not permit the unlicensed of carrying a concealed firearm or other weapon in zippered pack around the waist while riding a motorcycle-securely encase exception, 790.25(5) does not apply if carries weapon on his person, not within the interior compartment of the motorcycle
March 21, 2008
Wells, 33 FLW 735, 4th DCA, illegal stop-witness testimony was sufficiently attenuated from the illegal stop to be admissible where the records shows witness testified willingly at trial, that illegal stop of the vehicle played no role in securing the witness cooperation and witness first spoke to the police after the illegal search and he testified at trial two years later-witness was not the one stopped and was not coerced or influenced by the police misconduct-witness consent to the search of his apt was intervening circumstance that broke the chain of events that began with the stop so that the items taken from the apt was sufficiently attenuated from the illegal stop in order to present that evidence at trial
**DHSMV v. Pelham, 33 FLW 765, 5th DCA, refusal to take the breath test-license suspension may not be predicated on refusal to take the test that is the product of an unlawful arrest-amendments to statutory review procedure and reading of the staff analysis are not indicative of legislative intent-question certified-IMPORTANT CASE
March 14, 2008
Contreras, 33 FLW 177, Fla. SC, Pre-Trial Videotaped statement made by child victim to coordinator of the Child Protection Team were improperly admitted based on Crawford, because the statements were testimonial in nature, child was unavailable to testify at trial and the defendant did not have a meaningful opportunity to cross-examine the declarant-error was harmless as to Lewd and Lascivious conviction but not as to the sexual battery conviction-child was unavailable(long discussion) based on substantial likelihood of harm, important discussion about whether a deposition could be used in this case court ruled it did not afford the def the opportunity for cross-examination as the defendant was not present and it was not a perpetuated deposition
Blanton, 33 FLW 184, Fla SC, audiotape interview made with police investigator in which girl stated she was the person in photos and videos was testimonial out-of-court statement and was improperly admitted at trial where the girl was unavailable to testify and def did not have the meaningful opportunity for cross-examination-Crawford
C.A., 33 FLW 645, 3rd DCA, in-school search of juvenile no reasonable suspicion-where student was in the teacher's classroom at a time he was not supposed to be, teacher escorted him to the door, and upon returning to student who had been talking with the juvenile, immediately smelled strong odor of marijuana, this did not provide basis for taking the juvenile to the principal's office and asking the juvenile to empty his pockets and reveal anything he may have had in his wallet
Tedder, Jr., 33 FLW 704, 2nd DCA, Canine search did not provide pc for search as state did not show the dog was reliable, exact training the dog received, standards or criteria employed in dog training, track record of dog, amount of false alerts or mistakes the dog has furnished-contra, Coleman, 911 So. 2d 259(5th DCA 2005), Laveroni, 910 So. 2d 333(4th DCA 2005)
March 7, 2008
Jenkins, 33 FLW 147, Fla., totality of circumstances, probable cause and Confidential informant's for the state but important case to have in your file in order to try and distinguish.
Whittingham, 33 FLW 612, 4th DCA, Multiple convictions and sentences for various crimes sexual crimes against child arising from multi-year course of abuse of child victim by defendant-because state may charge a defendant in child sexual abuse case in a manner not permitted in other types of criminal cases, expanding time periods for commission of offenses and grouping types of offenses together, it is not fundamental error (no objection) to submit such a charge to the jury, prosecutor made no affirmative invitation to jury to find guilt by non-unanimous verdict, as was done in precedent relied upon by the defendant which was not a sexual abuse case
Kositsky, 33 FLW 614, 4th DCA, Corruption by threat-trial court should have granted JOA where element of intent to influence performance of an act by a public servant was not established-handcuffed def's threat to slit throat of officer if he removed handcuffs could not have the intent to influence the performing of an act
Valentin, 33 FLW 617, 4th DAC-Possession of cocaine with intent to sell-evidence was insufficient to show intent to sell in a park where the sole evidence consisted of ofc's testimony he saw the def drop a baggie, containing seventeen(17) smaller baggies of cocaine, in the bushes-discovery of smaller baggies not automatically establish intent to sell-quantity and packaging insufficient where ofc testified quantity and packaging was consistent with intent to sell and also admitted it could be for personal use
Milton, 33 FLW 622, 3rd DCA, where state called a witness and asked him questions about statements incriminating the def, knowing that the witness would invoke the Fifth A. right not to answer the question. def right to confront the witness was violate-impression for jury there was incriminating evidence against the def and def was unable to overcome this impression through cross-exam because witness would not testify
Robinson, 33 FLW 636, 2nd DCA, JOA should have been granted based on constructive possession where drugs were found in baggies which were concealed in ceramic house on kitchen counter of residence jointly occupied by def, his girlfriend and girlfriend's children and evidence did not show beyond a reasonable doubt that def knew of the presence of the drugs and ability to exercise dominion and control over them
February 29, 2008
Steil, 33 FLW 549, 4th DCA, aggravating fleeing or eluding an officer-insufficient evidence of driving at "high speed" or with "wanton disregard" for safety of persons or property, while fleeing or eluding an officer with lights and sirens activated, to support the conviction where ofc testified that he did not have lights or sirens on for most of the pursuit
Humphrey, 33 FLW 578, 2nd DCA, husband-wife privilege, cell phone records reflecting the number of calls between the def husband and wife, the duration of the calls, and the relative physical location of the cell phones at the time of the calls are not protected from disclosure of the husband-wife privilege-only the substance of the conversation is protected
Mordenti, 33 FLW 587, 2nd DCA, error to exclude testimony of attorney for alleged coconspirator, who was deceased at the time of the trial, regarding statements made to attorney by co-conspirator, where such testimony, if believed by the jury would exonerate the defendant, any attorney-client privilege was waived when the state received an ex parte order requiring attorney to respond to state's questions in prior trial-where Florida Supreme Court did not treat information as privileged in prior appeal, that has become law of the case as it relates to privilege-statements are admissible as impeachment of state witness, also admissible as spontaneous statement and statement against interest
February 22, 2008
Martinez, 33 FLW 125, S. Ct., jury instructions, self-defense, forcible felony exception-error to court to read when def is not charged with an independent forcible felony-is fundamental error when it deprives the def of a fair trial, not here where self defense was weak and not the only defense argued by the defendant
Yisrael, 33 FLW 131, S. Ct. HVFO-hearsay- DOC release date letters alone, inadmissible hearsay, crime and time reports issued by DOC are admissible as public records so long as they are properly authenticated, Dept may issue a 90.902(11) certification to that report, which satisfies business records admissibility predicate(signed and sealed admissible as public record to establish a def as a HVFO
Garcia, 33 FLW 485, 3rd DCA, evidence-other crimes, wrongs or acts, where def used a knife on the victim who was with the def estranged wife, trial court did not err in admitting evidence that showed estranged wife a knife eleven days earlier and told her he would use it on her if she was with another man-door was opened to admission of evidence of prior threat by def's testimony on cross-examination
*Barnes, 33 FLW 500, 4th DCA, Pat-Down, although the pat-down was not justified by fact that he made movements toward his pockets after ofc stopped him for riding bicycle at night without a light, trial court erred in granting a motion to suppress all evidence obtained by the officer-error to grant motion to suppress of cocaine discovered in def's pocket after discovery of outstanding warrant and arrest of defendant-subsequent arrest after unlawful pat down and formal arrest of def dissipated taint of illegal frisk-State v. Frierson, 926 So. 2d 1139(Fla. 2006)(three part test as evidence is excluded as fruit of the poisonous tree)
Schreiber, 33 FLW 526, 2nd DCA, cross-exam-rule of completeness is not grounds for the jury to be told the def is on probation just because she testified that her employer had poor money management skills, def's being on probation is neither explanatory nor relevant to def's theory of defense in a theft case that the money was lost as the result of her employer's poor management skills.
February 15, 2008
Hill, 33 FLW 426, 2nd DCA, fingerprint-evidence that def's fingerprint was found on a piece of glass from a broken window at burgled premises was insufficient to sustain conviction of trespass of LIO of burglary where the window was accessible to the public
Novak, 33 FLW 431, 4th DCA, self-defense, jury instructions, error fundamental, jury instruction imposing a "duty to retreat" on a def who employs self-defense while in "engaged in unlawful activity" was confusing under the circumstances because the def was not engaged in an unlawful activity other than the crimes for which he asserted the justification is well-taken
Berube, 33 FLW 451, 5th DCA, def was erroneously convicted of vehicular homicide where evidence did not prove that the driving in a reckless manner likely to cause death or GBH to another-def's act of briefly stopping and then making a left turn across opposing lanes of traffic and hitting an oncoming traffic and hitting an oncoming vehicle after a following truck had almost hit the def's vehicle from the rear did not rise to level of recklessness necessary to support the conviction
February 8, 2008
A.T.P., 33 FLW 402, 2nd DCA, search of parked vehicle was unlawful where the juvenile had exited the vehicle thirty minutes earlier and had been told by the officer during a consensual encounter that he was free to go, and he was standing 30 to 60 ft. from the vehicle when the ofc discovered that juvenile had a business purpose only driver's license and he arrested him for the license violation-juvenile was not in close proximity to vehicle, had not recently exited the vehicle and did not have keys to locked vehicle in his possession; and there was no evidence that the officer was concerned for his safety or there was a risk that juvenile might destroy any evidence that might be contained in the vehicle
February 1, 2008
Busciglio, 33 FLW 267, 2nd DCA, trial court erred in suppressing arresting ofc's request and def refusal to take a breath test(2nd time now a misdemeanor) on ground that the def was denied his right to counsel on ground that he was now facing a misdemeanor and not just a license suspension-ofc explanation to the def of obligation to take the breath test, request that def take the breath test, def response to request did not constitute testimonial interrogation implicating right to counsel
Gallo, 33 FLW 284, 4th DCA, Arthur hearing found for the state, presumption of guilt is great and proof of charge is evident here there were not enough substantial questions of fact raised as to the guilt or innocence of the defendant based on the def's statements with a brutal second degree murder and his statement did not explain the highly incriminating circumstances which teded to impeach is version of events
Reed, 33 FLW 289, 4th DCA, reasonable doubt as to the impartiality of prospective juror and his ability to be fair and impartial response that he will always "favor a little bit more" police officers and favor them even more when alcohol is involved, remand for new trial
Morton, 33 FLW 338, 5th DCA, Motion for mistrial should have been granted where c.i. who allegedly purchased cocaine from the def testified that "a lot of folks knew that the def was selling drugs-curative instruction not enough where jury was improperly informed of def's prior criminal activity
January 18, 2008
Khianthalat, 33 FLW 44, Fla, not entitled to permissive lesser included jury instruction of battery in Lewd and Lascivious case where there is no allegation of lack of consent in the charge and the evidence did not support lack of consent
Ward, 33 FLW 445, Fla, Jimmy Ryce Act, a person who was not in custody on 1-1-99, is eligible for civil commitment under the Act if that person was sentence to total confinement after 1-1-99, but the qualifying sex conviction occurred prior to 1-1-99
January 15, 2008
Swift, 33 FLW 222, 2nd DCA, error to deny JOA for Agg. Assault where charge was based on theory that the defendant backed his automobile in the direction of a police officer who had run behind the def's vehicle only seconds before def began to back up out of a driveway at night, state failed to prove the def had requisite specific intent to threaten the officer
Richardson, 33 FLW 230, 4th DCA, trial court erred in denying the motion to suppress physical evidence and post-Miranda statement based on an illegal stop of the def's vehicle-no reasonable suspicion that criminal activity was or about to take place, stop was illegal, where the def was parked in a deserted parking lot where he had made numerous drug arrests, observed the vehicle swaying back and forth and described the swaying as not too violent-location and non-violent swaying not justify the stop
**Hobbs, 33 FLW 260, 5th DCA, sexual activity with child-confession, Section 92.565, which eliminates the corpus delicti precondition for introduction and admissions of confessions in sexual abuse cases when the state is otherwise unable to prove the crime, is applicable to make the def's confession admissible when the state inability to prove the crime due to victim's lack of cooperation rather than her incapacity-Conflict certified, Kelly, 946591(1st DCA 2006)
January 11, 2008
Lopez. 33 F;W 22. Fla, Good Post-Crawford and Post Davis cases that discuss testimonial evidence vs. excited utterance and pre-trial depositions are not considered cross-examination for 6th A. purposes and court when the defendant is clearly not present at the deposition.
Sellers, 33 FLW 93, 1st DCA, Blood test record admitted into evidence was non-testimonial in nature where blood test was performed only because def emergency room doctor required the test for treatment purposes only and properly diagnose and not ordered by law enforcement or performed in furtherance of a police investigation.
Wilson, 33 FLW 117, 4th DCA, Self-defense, where def claimed self-defense in a fight with victims, court erred in excluding evidence about prior confrontations between the def and the victims, including incident where there was a verbal altercation and victims tried to entice the def into a fight by using provocative racial epithet and fact that victims had driven past the def's house every day for six months leading up to the incident in question
Ratliff, 33 FLW 132, 4th DCA, error to revoke probation where material evidence adduced to prove criminal violations consisted of almost exclusively of inadmissible hearsay-lack of non-hearsay evidence establishing essential elements of criminal offenses of issue, i.e., knowledge, custody and control of drug, and intent to sell, judge abused discretion in revoking probation
Alhindi, 33 FLW 136, 4th DCA, Felony while driving while license suspended or revoked as H.O.-error to grant motion to dismiss on ground that DHSMV illegally placed 5 year revocation-state was not required to prove that DMV lawfully designated defendant Habitual Traffic Offender but merely to introduce def driving record-fact that, after def charged lawyer set aside underlying traffic convictions which rendered him a habitual traffic offender and led to license revocation does not event the state from presenting a prima facie case of felony driving with revoked License as a habitual traffic offender-def remedy was to correct the record upon receiving revocation notice and not ignore the notice of the suspension
Doe, 33 FLW 139, 4th DCA, arresting ofc did not have reasonable suspicion that crime had occurred, or was about to occur, when he stopped the def's vehicle, which was parked in an area that did not have marked spaces and which drove away as officers approached while on foot patrol in area known for drug deals-no traffic violation as pulled out of parking area
Phillips, 33 FLW 148, 2nd DCA, Def was on administrative probation had constructive notice of standard condition of probation requiring submission of random testing to determine presence of controlled substances
White, 33 FLW 151, 4th DCA, trial court improperly admitted testimony that def's conduct displayed a characteristic typical of drug transactions-general criminal behavior based on ofc's experience with other cases is inadmissible as substantive proof of def's guilt
Roger P. Foley, P.A.
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Fort Lauderdale, Florida 33301
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