“Pelham” Is Now The Law

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Legene v. State, 36 Fla. L. Weekly D1024 (Fla. 5th DCA, May 13, 2011): Writ of Mandamus, Granted – Defendant charged with Agg Batt w/ Deadly Weapon and Agg Assault w/ Deadly Weapon files motion to dismiss claiming immunity from criminal prosecution under ss. 776.032, 776.012 and 776.013(3), Fla. Stats.  State moves to strike saying Defendant did not provide adequate factual basis and court grants state’s motion before ever hearing defense motion.  State finally concedes that the Defendant is entitled to an evidentiary hearing on its motion to dismiss. See Dennis v. State, 51 So.3d 456 (Fla. 2010).

Larry v. State, 36 Fla. L. Weekly D1026 (Fla. 5th DCA, May 13, 2011): Defense Appeal, Reversed – Defense attorney fails to move for JOA when element of the offense is not established.  Ineffective assistance of counsel can be raised on appeal if it is “obvious on the face of the appellate record” and is so clear that “it would be a waste of judicial resources to require the trial court to address the issue.” (Citations omitted).

Zeigler v. State, 36 Fla. L. Weekly D1029 (Fla. 2d DCA, May 13, 2011): Defense Appeal, Remanded for resentencing – Good case describing when a judge steps beyond the role of impartial arbiter (Judge put fear of god into defendant that wanted trial).  Case to be sentenced by another judge.

Fawdry v. State, 36 Fla. L. Weekly D1037 (Fla. 1st DCA, May 13, 2011): Court allows search of cell phone as valid if incident to an arrest.  Seems to be several of these cases coming down that the search is lawful if incident to arrest, however, I heard noise out of the 6th District Court of Appeal recently that the Feds had rule against this.  I’ll try to keep this issue up-to-date. (if anyone knows the 6th District Court of Appeal’s cite please send.

Bray v. State, 36 Fla. L. Weekly D1039 (Fla. 1st DCA, May 13, 2011): Defense Appeal, Reversed – Defendant tested positive for cocaine (Violation of Community Control). Court allowed in officer testimony on “presumptive” test and lab report (on more extensive testing).  Both are hearsay.

State v. Akins, 36 Fla. L. Weekly S215 (Fla. May 26, 2011): Certified Conflict Resolved – Defendant sentenced as HFO originally on split sentence commits violation on supervision portion.  Sentencing judge on violation imposes sentence but fails to classify defendant, again, as HFO.  Later, after defendant begins sentence for violation the court amends disposition to reflect HFO status.  Supremes say this violates double jeopardy.

Wonder v. State, 36 Fla. L. Weekly S220 (Fla. May 26, 2011): Conflict Resolved – “Stand Your Ground” law immunity issue.  Defendant should be granted evidentiary hearing when section 776.032, Fla. Stat. immunity is raised.

Dillon-Watson v. State, 36 Fla. L. Weekly D1089 (Fla. 4th DCA, May 18, 2011): Defense Appeal, Reversed and Discharged – Search and Seizure case. Anonymous tip. Just another good case to put in your trial notebook stack.

Dewolfe v. State, 36 Fla. L. Weekly D1106 (Fla. 1st DCA, May 23, 2011): Defense Appeal, Reversed for New Trial – Defense witnesses in theft case were not allowed to testify to a (now deceased) third party’s statement against penal interest in which the deceased admitted to committing the theft.  First DCA reverses – great case on the law and standard the court must follow.

State v. Geiss, 36 Fla. L. Weekly D1132 (Fla. 5th DCA, May 27, 2011): State Appeal, Reversed – DUI defendant refuses breath test.  He is not injured and no accident.  Police obtain a warrant to take his blood.  Court finds that (1) this is not privacy violation, (2) does not violate implied consent (see dissent), and (3) although warrant was improperly issued (apparently judge should not have issued it), the police get free pass because they relied on warrant in good faith.  Why not, it is just his blood, right?  Jesus, nothing is sacred anymore.

DHSMV v. Hernandez, et al., 36 Fla. L. Weekly S243 (Fla. Jun 9, 2011): Florida Supreme Court adopts ruling in Hernandez v. DHSMV, 995 So.2d 1077 (Fla. 1st DCA 2008) and DHSMV v. Pelham, 979 So.2d 304 (Fla. 5th DCA 2008), review denied, 984 So.2d 519 (Fla. 2008).

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