THE STATE OF FLORIDA, APPELLANT,
v.
CESAREO BREA, APPELLEE

Fla. 3d DCA | 1987-12-29
No. 86-3210
Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
525 So. 2d 907 Florida District Court of Appeal, Third District (1987) Caution
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Florida appeals a pretrial order excluding a co-conspirator's statements from evidence, claiming the order involves an appealable admission or confession. The court dismisses the appeal for lack of jurisdiction, holding that only admissions made by the defendant himself—not vicarious admissions through co-conspirators—are reviewable under appellate procedure rules.


Holding

An order is appealable as involving an admission only if the statement is made by the defendant himself, not when made vicariously through another party, even a co-perpetrator. Co-conspirators' statements, though characterized as admissions in evidence law, are routine evidentiary rulings not reviewable on appeal.


Headnotes

[1] An appellate court lacks jurisdiction to review a pretrial order suppressing co-conspirator statements if the order does not fall under the specific categories of appeala…

[2] For the purpose of appellate review under Florida Rule of Appellate Procedure 9.140(c)(1)(B), an "admission" subject to appeal refers to a statement made by the defendant…

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Key Quotes

“an order is appealable as involving an admission only if the statement is made — in whatever context — by the defendant himself, as in Palmore and Steinbrecher, but not when it is made vicariously through another party, even a co-perpetrator”

Establishes the core holding that only the defendant's own admissions are reviewable on appeal, not vicarious admissions through co-conspirators

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Facts & Procedural History

The defendant-appellee moved to exclude statements of an alleged co-conspirator who was also a co-defendant. The co-conspirator had previously been gr…

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Opinion of the Court
SCHWARTZ, Chief Judge.

SCHWARTZ, Chief Judge.

The state, purportedly invoking Florida Rule of Appellate Procedure 9.140(c)(1)(B), seeks appellate review of a pretrial order granting the defendant-appellee’s motion to decline to admit an alleged co-conspirator’s statements into evidence. The basis of the ruling below was that the co-conspirator, who was then a co-defendant, had been granted a directed verdict in his favor on the grounds of entrapment in an earlier trial, thus, it was reasoned, rendering it impossible for him to act as a member of the conspiracy. We do not reach the merits of this controversy because we have no jurisdiction to review it.

Specifically, we hold that the only provision of Rule 9.140(c)(1)(B) relied upon by the state, that which permits review by appeal of an order suppressing “confessions [or] admissions,” does not apply. In attempting the task of reconciling1 the supreme court’s decisions in State v. Palmore, 495 So. 2d 1170 (Fla.1986) and McPhadder v. State, 475 So. 2d 1215 (Fla.1985), and its specific disapproval in Pal-more of our holding in State v. Steinbrecher, 409 So. 2d 510 (Fla. 3d DCA 1982), we conclude that an order is appealable as involving an admission2 only if the statement is made — in whatever context — by the defendant himself, as in Palmore and Ste-inbrecher, but not when it is made vicariously through another party, even a co-perpetrator, as in McPhadder. See People v. Hobbs, 400 Ill. 143, 79 N.E. 2d 202 (1948) (“admission” is adverse statement of defendant); Geer v. State, 92 Nev. 221, 548 P. 2d 946 (1976) (same); State v. Lenarchick, 74 Wis.2d 425, 247 N.W. 2d 80 (1976) (same).

Thus, notwithstanding that co-conspirators’ statements are characterized as a matter of the law of evidence as “admissions,” see § 90.803(18)(e), Fla.Stat. (1985), the order in question here is no more than a routine ruling concerning admissibility which could as well have been made during the trial itself — when it would have con-cededly been entirely unreviewable. The order may not therefore be considered such an admission as a matter of the law of appellate review. See also State v. Langer, 490 So. 2d 1019 (Fla. 5th DCA 1986). In accordance with our repeated rulings that such orders may likewise not be considered on certiorari, State v. Arriagada, 508 So. 2d 1247 (Fla. 3d DCA 1987); State v. Cecil, 508 So. 2d 1249 (Fla. 3d DCA 1987), we dismiss the appeal. We certify to the supreme court that this cause involves the same question of great public importance framed in Amagada and Cecil.

Appeal dismissed, question certified.

. State v. Patmore, 495 So. 2d 1170 (Fla.1986), refers to the First District decision in State v. McPhadder, 452 So. 2d 1017 (Fla. 1st DCA 1984), as being overruled on other grounds by McPhadder v. State, 475 So. 2d 1215 (Fla.1985). Since it does not clearly appear what those other grounds may have been, we have made our own accommodation of the supreme court’s intent on the grounds which appear in this opinion.

. None of these cases even arguably involve a "confession" to the crime.


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Citator

Cited By

  • State v. Cesaero Brea, 530 So. 2d 924 (Fla. 1988)
    …EHRLICH, Chief Justice. We have for review State v. Brea, 525 So. 2d 907 (Fla. 3d DCA 1987), in which the district court certified the same question of great public importance framed in State v. Amagada, 508 So. 2d 1247 (Fla. 3d DCA 1987), quashed, 518 So. 2d 918 (Fla.1988), and State v. Cecil, 508 So. 2d 1249 (Fla. 3d D…
  • State v. Cesareo Brea, 545 So. 2d 954 (Fla. 3d DCA 1989)
    …. . We have this cause on remand from the Florida Supreme Court, which addressed the threshold issue of whether the State of Florida could seek appellate review of the pre-trial order. This court originally decided that it could not. State v. Brea, 525 So. 2d 907 (Fla. 3d DCA 1987). The supreme court held that the State could obtain appellate review under Rule 9.140(c)(1)(B), Florida Rules of Appellate Procedure. State v. Brea, 530 So. 2d 924 (Fla.1988). . Appellee does not contend that he was entrapped.…

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