THE STATE OF FLORIDA, APPELLANT,
v.
JAMES F. SCHMITZ, APPELLEE
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SCHWARTZ, Chief Judge.
The state appeals from a pre-trial order in a manslaughter-DUI case which suppressed the result of a blood alcohol test on the ground that the person who took the sample from the defendant was not authorized under Sec. 316.1932(l)(f)(2), Fla.Stat. (1981). We affirm because (a) the state attorney interposed no objection below and indeed specifically agreed that the motion to suppress was well taken,1 State v. Evans, 388 So. 2d 1104 (Fla. 4th DCA 1980); and (b) on the merits, the ruling was entirely correct. State v. Roose, 450 So. 2d 861 (Fla. 3d DCA 1984).
Affirmed,
. Whether the state's attempt to reverse an order on appeal which it represented was correct to the trial court is characterized as merely "unseemly,” Finney v. State, 420 So. 2d 639, 643 (Fla. 3d DCA 1982) (Pearson, J., concurring spe-dally), or in the more pejorative terms it seems to warrant, such a change-of-face-and-heart will not be permitted to succeed. See State v. Belien, 379 So. 2d 446 (Fla. 3d DCA 1980).
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State v. Jones, 562 So. 2d 740 (Fla. 3d DCA 1990)…) she had the right to move for suppression of the eonversation. In fact, at the suppression hearing the state conceded that the defendant had the right to question the voluntary nature of her friend’s consent to make the call. See State v. Schmitz, 450 So. 2d 1254 (Fla. 3d DCA 1984). Notwithstanding its earlier concession, the state here cites federal case law and claims the defendant cannot assert a right personal to the employee claiming coercion. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65…
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Boris Melton v. State, 698 So. 2d 1287 (Fla. 5th DCA 1997)…rest warrant was outstanding for the person for whom the bicycle officer was searching and this officer reasonably mistook the driver of the vehicle as that person. The state’s argument is rejected because it was not raised below. State v. Schmitz, 450 So. 2d 1254 (Fla. 3d DCA 1984). Further, no evidence was presented below to support the state’s assertion on appeal that an arrest warrant, in fact, existed for the person thought to be the driver. Cf. McCrea v. State, 475 So. 2d 1357 (Fla. 5th DCA 1985) (arres…
Authorities Cited
- Logan Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982)
- Weinstein v. Heyman, 379 So. 2d 446 (Fla. 3d DCA 1980)
- Alvarez v. The Honorable David Gersten, 450 So. 2d 861 (Fla. 3d DCA 1983)
- State v. Roose, 450 So. 2d 861 (Fla. 3d DCA 1984)
- State v. Evans, 388 So. 2d 1104 (Fla. 4th DCA 1980)