DOUGLAS ANTHONY HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harris pleaded nolo contendere to armed robbery while preserving his right to appeal the denial of his suppression motions. The trial court found an illegal stop but ruled the search lawful based on consent. The appellate court remanded to determine whether the suppression motions were dispositive, as a non-dispositive motion cannot be reserved for appeal following a nolo plea.
Only dispositive motions may be reserved for appeal following a nolo plea. The suppression motions may not be dispositive because the trial court did not address whether the victims could identify Harris in court based on their independent recollection from the time of the crime, which would not be fruit of the illegal search.
[1] A nolo contendere plea only permits appeal of a dispositive motion.
[2] An illegal arrest does not necessarily preclude an in-court identification if the victim has an independent recollection of the accused from the time of the crime.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Only a dispositive motion may be reserved for appeal following a nolo plea.”
Establishes the legal requirement that limits which motions can be preserved for appeal after a nolo contendere plea.
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Join FLexlaw to unlock all legal intelligenceHarris was stopped by police in circumstances the trial court found to be illegal. The trial court nevertheless found Harris consented to a search. Ph…
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ORFINGER, Judge.
Appellant pleaded nolo contendere to a charge of armed robbery specifically reserving the right to appeal the denial of his motion to suppress physical evidence found as the result of an alleged illegal search, and the denial of his supplemental motion to suppress an out-of-court identification which appellant says was the fruit of the illegal search. The trial court found that appellant had been illegally stopped, but that he had consented to the search, hence the search and the on-the-spot identification of appellant were lawful.
Only a dispositive motion may be reserved for appeal following a nolo plea. Brown v. State, 376 So. 2d 382 (Fla.1979). Even if appellant is correct in his position that the physical evidence and the out of court identification should both have been suppressed in this case, this determination may not be dispositive because the defendant did not address nor did the trial court rule on the issue of an in-court identification of appellant by the robbery victims. See United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), where the United States Supreme Court held that an illegal arrest would not necessarily preclude an in-court identification of the accused by the victim because the victim’s independent recollection of the identity of the accused was arrived at when the crime was committed, which was prior in time to the illegal police activity and thus not its product.1
We therefore relinquish jurisdiction to the trial court for a period of sixty (60) days with directions to hold such hearings and to take such testimony as the trial court deems necessary and to determine by written order with appropriate findings, which shall then be certified to this court, whether the motion and supplemental motion to suppress are dispositive of the issues in this case.
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur. . Cf. Roberts v. State, 390 So. 2d 769 (Fla. 3d DCA 1980), where the court held that the suppression of the physical evidence, the out of court and the in-court identification would have left the State with no evidence, so the motion to suppress was dispositive.
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Citator
Cited By
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Logan Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982)…stimony concerning the out-of-court identification, we could have consistently held that the victim was free to identify the defendant in court. See, e.g., United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Harris v. State, 400 So. 2d 462 (Fla. 5th DCA 1981). These potential differences in result, which exist in every case where the defendant and the State agree that a motion or motions seeking to exclude more than one item of evidence or body of testimony obtained through unrelated…
Authorities Cited
- United States v. Crews, 445 U.S. 463 (U.S. 1980)
- Brown v. State, 376 So. 2d 382 (Fla. 1979)
- Jewel Halker McGANN v. Halker, 390 So. 2d 769 (Fla. 3d DCA 1980)