I will be posting these highlights on the BLOG instead of the main page.  They are prepared for the PD's office, but I hope sharing them with the entire legal community may help those who are just too busy to keep up with new cases.  Some of the cases are already covered in my Thursday from the 4th blurbs.  Please excuse the duplications. 

January 29, 2007

CONSTRUCTIVE POSSESSION - VOP - MOVING FROM ONE HOTEL ROOM TO ANOTHER: Martoral v. State, 32 Fla. L. Weekly D228 (Fla. 4th DCA Jan 26, 2007). Gardiner case. Defendant is charged with violating his probation. As to the allegation that he changed his residence without prior approval, the court held that moving from one room at a Howard Johnson motel to another room without telling the probation officer is not a willful and substantial violation. Next, Martoral was alleged to have possessed marijuana. This is a typical case of two people sitting in a car and the bag of weed is was in plain view on the dashboard. The legion of constructive possession cases would mandate a JOA at a trial. This case holds that there was no violation even with the much lesser standard of proof necessary to prove a VOP.

POSSESSION OF RECENTLY STOLEN PROPERTY INSTRUCTION: Holcomb v. State, 32 Fla. L. Weekly D232 (Fla. 4th DCA Jan. 26, 2007) Gardiner case. The issue in this case is whether it is proper to give the recently stolen property presumption when the defendant is in constructive as opposed to actual possession of the stolen property. The court held that the instruction was proper because the Defendant was the sole occupant of the car in which the stolen goods were found. The case differentiates between the legal definition and the common sense meaning of "actually possessed." The court held that in these type of cases, the term "actually possessed" refers to possession "in fact" and does not mean "constructive possession" as that term is understood in possession cases.

CONSTITUTIONALITY OF STATUTE: A.H. v. State, 32 Fla. L. Weekly D243 (Fla. 1st DCA Jan. 29, 2007). Section 827.071(3), Florida Statutes (directing or promoting a photograph or representation that the Defendant knew included sexual conduct of a child) is constitutional in face of a "right to privacy" challenge. The interesting thing in this case is that the Defendant and her boyfriend are minors and the pair took pictures of themselves having sex. Once the picture was sent over the Internet, the statute was violated.

FORFEITURE OF GAIN TIME ON SPLIT SENTENCE - MOTION TO ENFORCE PLEA AGREEMENT: Dellofano v. State, 32 Fla. L. Weekly D251 (Fla. 5th DCA Jan. 26, 2007). Haven’t had one of these cases in a while. Defendant is initially sentenced to two years FSP followed by two years probation. After a vop, he was sentenced to 63 months FSP with 793 days credit for time served. When he returned to the Dept. of Corrections, pursuant to section 944.23(1), Florida Statutes, DOC forfeited his gain time which resulted in the Defendant getting a longer sentence than was anticipated in the trial court. This case holds that DOC cannot thwart the intent of the sentencing court and that the trial court should fashion a sentence to give effect to the original plea bargain. If that cannot be obtained, the Defendant should be allowed to withdraw his plea.