EX POST FACTO – PROBATION CONDITION – JESSICA LUNSFORD ACT:  Burrell v. State, 32 Fla. L. Weekly D2625 (Fla. 2d DCA Nov. 16, 2007).  After a violation of probation a court may, but does not have to, impose the electronic monitor mandated by section 948.30, Florida Statutes (2002) if the offense occurred before the date of the statute’s enactment.

RESISTING WITHOUT VIOLENCE – ANOTHER “EXCECUTION OF A LEGAL DUTY CASE”:  Perry v. State, 32 Fla. L. Weekly D2630 (Fla. 4th DCA Nov. 16, 2007).  Jimmy Cohn case. (That is correct, a Cohn case.  This one went to the supreme court, eight years later there is a resolution.)  Perry is arrested for a drug charge and at the jail they wanted to strip search him to see if he had any drugs in his anus.  Without any written permission from a supervisor, the booking officer told Perry to disrobe and, I guess, “assume the position.”  Objecting to the intrusion, Perry eventually hit the booking officer resulting in charges for battery on a law enforcement officer and resisting arrest with violence.  The court first found that what happened in the booking room at the jail occurred after Perry’s initial arrest; therefore, the state would have to prove that the officer was in the execution of a legal duty before Perry could be found guilty of batt. leo. and RAWV.  Next, the court found that because the officer violated the strip search statute, section 901.211(5), which mandates that written authorization from the supervising officer on duty be obtained before performing a strip search, the officer was not in the execution of a legal duty.  Therefore, Perry could only be convicted of simple battery.

COMMENTING ON THE RIGHT TO REMAIN SILENT:  Myles v. State, 32 Fla. L. Weekly D2646 (Fla. 4th DCA Nov. 16, 2007).  Myles is arrested and brought to the jail.  They find some pot on him and he is charged with introduction of contraband into a county detention facility.  During trial, the prosecutor asked the detention deputy: “What, what, if you would tell the jury what happened when you first come into contact with Christopher Myles.”  In his response, the deputy said the he never answered the question whether he had anything on him.  The prosecutor followed up with the question, “Now did, did you, how many times did you ask if he had anything on him that would, you know, drugs or -”  Again, the deputy testified that Myles did not respond.  Counsel then objected and moved for a mistrial.  The court found that this was a comment on Myles’ right to remain silent.  Furthermore, the court found that an immediate objection and motion for mistrial was not required after the prosecution asked the initial question because the deputy’s comment about Myles not saying anything was an unsolicited comment.  “When an objection is made to unsolicited comments of a witness, the immediacy of the objection is not as critical as when the objection is to a question. . .courts have long recognized that objections to unsolicited comments are timely if made within a reasonable time.”

MOTION FOR NEW TRIAL – SEVENTH JUROR:  Ferebee v. State, 32 Fla. L. Weekly D2664 (Fla. 2d DCA Nov. 16, 2007).  When considering a motion for new trial under rule 3.600(a)(2) based on a claim that the verdict is against the weight of the evidence, the trial court must determine whether a greater amount of credible evidence supports an acquittal.  This rule authorizes the judge to act as an additional (seventh) juror.