Criminal law -- Plea -- Withdrawal -- Failure to advise of immigration consequences of plea -- Defendant's second motion to withdraw plea was time-barred where plea was entered in 1991; defendant became aware of immigration consequences in 1998; defendant filed motion to withdraw plea within two years of learning of
immigration consequences, which motion was timely under supreme court's ruling in Peart v. State, but withdrew that motion based on mistaken belief that he was a citizen who was not subject to removal; and defendant filed second motion to withdraw in 2007 after federal agency denied defendant's application for certificate of citizenship
-- Supreme court's 2006 decision in State v. Green, which reduced the time in which defendants must bring claims based on alleged violation of rule 3.172 and gave defendants whose cases were already final two years from date of Green opinion to file motion comporting with the standards adopted by the court, did not revive claim which was
already time-barred under Peart v. State  Reported at 33 Fla. L. Weekly D1062a

Criminal law -- Search and seizure -- Exigent circumstances --Consent -- Officers' warrantless entry into apartment was justified by exigencies of circumstances where officers understood that gunshots had been fired recently in apartment, and officers heard noise or commotion inside apartment -- Defendant's consent to search of his person after officers had entered apartment was voluntary -- Where officers did not act in coercive, oppressive, or dominating manner, defendant's consent was not mere acquiescence to apparent police authority -- Trial court properly denied motion to suppress drugs found in search of defendant  Reported at 33 Fla. L. Weekly D1063a

Criminal law -- Attempted second degree murder -- Evidence -- Error to refuse to allow defense counsel to put before jury the reputation of victim for truth and veracity in community where victim's credibility was the heart of defense, as victim's testimony was only evidence linking defendant to shooting -- Error was not harmless where other witnesses specifically denied seeing defendant at scene of shooting   Reported at 33 Fla. L. Weekly D1054b

Criminal law -- Cruelty to animals -- Evidence -- Hearsay --Statement made to an officer by defendant's son, who was not a witness at trial, incriminating his father was testimonial and not admissible under Crawford v. Washington because there was no ongoing emergency, the event described by the son occurred twenty minutes
earlier, and son did not seek assistance of police, but rather officers approached the son -- Although state contended that son's statement was excited utterance, admissibility of excited utterance is ultimately governed by Crawford   Reported at 33 Fla. L. Weekly D1056a

Criminal law -- Traffic infractions -- Speeding -- Evidence -- Laser certification -- Hearsay -- Exceptions -- Business records -- Laser certification is routine business record that can be admitted into evidence under business records exception to hearsay rule without need for person who tested instrument to authenticate record -- Even
if trial court erred in admitting certification into evidence, officer's visual estimate of defendant's speed is sufficient to establish beyond reasonable doubt that defendant exceeded speed limit -- Laser certification is non-testimonial hearsay subject to business records exception -- Section 316.1905(3)(b), which provides that upon production of certificate that speed measuring device was tested and is working properly presumption to that effect is established, is constitutional

Licensing -- Driver's license -- Suspension -- Driving under influence -- Evidence -- Breath test -- Inspection and testing of breath testing instrument -- Administrative law -- Rules -- Rules of statutory construction apply to regulations promulgated by the FDLE-- Plain language of rule requiring that Intoxilyzer 5000 be inspected before and after being moved does not apply to Intoxilyzer 8000 -- Rule clearly distinguishes between testing and inspection for an Intoxilyzer 5000 and an Intoxilyzer 8000 -- Inspection of breath testing instrument on June 14, 2007, and July 14, 2007, complied with requirement that evidentiary breath test instruments be inspected at
least once each calendar month -- There is no requirement that monthly inspections occur every thirty days

Licensing -- Driver's license -- Suspension -- Driving under influence -- Lawfulness of arrest -- Actual physical control of vehicle -- Pursuant to statutory changes in section 322.2615, statements made by licensee during crash investigation are not privileged in administrative license suspension hearing -- Argument that corpus delicti for DUI cannot be established confuses standard of proof in criminal DUI prosecution and preponderance of evidence
standard of proof in administrative license suspension -- Even absent licensee's statement that he was only person in vehicle that crashed into waters of bay, there was competent substantial evidence to support hearing officer's determination that arresting officer had probable cause to believe that licensee was in actual physical
control of vehicle where licensee was only person in water near vehicle, keys were in ignition, and vehicle was in gear                                Courtesy of Florida Law Weekly       Subscriptions (800) 351-0917