STACEY BENNETT, ET AL., PETITIONERS,
v.
STATE OF FLORIDA, RESPONDENT
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Sixteen DUI defendants sought certiorari review challenging a circuit court's order that upheld the suppression of breath test results but allowed the state to introduce those results by establishing traditional scientific predicate. The appellate court held that the circuit court erred by sua sponte raising and deciding an issue not presented by the parties or considered by the trial court.
An appellate court may not consider issues not presented to the trial court and not raised on appeal. The circuit court erred in sua sponte considering the traditional scientific predicate issue and modifying the county court's order to include this alternative basis for admissibility.
[1] An appellate court cannot consider issues not presented to the trial court on appeal.
[2] An appellate court should confine itself to a review of only those questions which were before the court below.
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Join FLexlaw to unlock all legal intelligence“An appellate court cannot consider issues not presented to the trial court on appeal from orders of dismissal, Lipe v. City of Miami 141 So.2d 738 (Fla.1962), on appeals from final judgments on the merits; Cowart v. City of West Palm Beach, 255 So.2d 673 (Fla.1971) or appeals from final summary judgments; Dober v. Worrell, 401 So.2d 1322 (Fla.1981)”
Establishes the fundamental rule that appellate courts are limited to issues presented to the trial court and raised on appeal.
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Join FLexlaw to unlock all legal intelligenceSixteen defendants in DUI prosecutions filed consolidated motions to suppress breath test results obtained using modified devices. The county court is…
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DAUKSCH, Judge.
The petitioners, sixteen defendants in DUI prosecutions, seek certiorari review of an order of the circuit court, sitting in its appellate capacity, which upheld an en banc county court order finding that a modified breath testing device did not meet H.R.S. testing procedures and suppressing the test results.
The circuit court went further and sua sponte held that the state could introduce evidence of the test results by establishing the traditional predicate for the introduction of scientific evidence. We grant the petition and quash the circuit court’s order. The petitioners filed motions to suppress breath test results which were taken on modified devices. The county court consolidated the petitioners and other similar defendants’ motions and entered an en banc order suppressing the test results on the basis that the devices were not properly approved at the time the tests were administered.
The circuit court affirmed the county court order but went further and held that the state could use the unapproved device test results if the state established the traditional predicate for the introduction of evidence.
The issue of traditional scientific predicate was not raised by the parties and not considered by the county court. The parties did not raise this issue on appeal to the circuit court.
We hold that the circuit court, sitting in its appellate capacity, erred in considering the traditional scientific predicate issue sua sponte and modifying the county court order with the inclusion of that issue. An appellate court cannot consider issues not presented to the trial court on appeal from orders of dismissal, Lipe v. City of Miami 141 So. 2d 738 (Fla.1962), on appeals from final judgments on the merits; Cowart v. City of West Palm Beach, 255 So. 2d 673 (Fla.1971) or appeals from final summary judgments; Dober v. Worrell, 401 So. 2d 1322 (Fla.1981); Sparta State Bank v. Pape, 477 So. 2d 3 (Fla. 5th DCA 1985). See also Durden v. Compass Points, Inc., 521 So. 2d 363 (Fla. 5th DCA 1988).
On appeal a court should confine itself to a review of only those questions which were before the court below. See Mariani v. Schleman, 94 So. 2d 829 (Fla.1957); Jones v. Neibergall, 47 So. 2d 605 (Fla.1950). We do not address the question relating to the propriety of the circuit court’s ruling that the state may introduce the test results into evidence by establishing the traditional scientific predicate. This issue can be determined when and if the state attempts to introduce the test results in the several trials below.
WRIT GRANTED, ORDER QUASHED.
DIAMANTIS and THOMPSON, JJ., concur.
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Fla. Emergency Physicians-Kang & Assocs., M.D., P.A. v. Parker, 800 So. 2d 631 (Fla. 5th DCA 2001)…xamination of Samantha in this case. Absent jurisdictional or fundamental error, an appellate court should not consider issues that were not presented to the trial court. Abrams v. Paul, 453 So. 2d 826, 827 (Fla. 1st DCA 1984); see Bennett v. State, 641 So. 2d 938 (Fla. 5th DCA 1994). It is the function of the appellate court to review errors allegedly committed in the trial court, not to entertain for the first time on appeal, issues which the complaining party could have, and should have, but did not, prese…
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Lloyd v. State, 876 So. 2d 1227 (Fla. 4th DCA 2004)…1322, 1323-24 (Fla.1981) (holding it improper to raise issue for first time on appeal); Universal Underwriters Ins. Co. v. Tucker, 736 So. 2d 778, 779 (Fla. 4th DCA 1999) (argument not having been raised in trial court is waived); Bennett v. State, 641 So. 2d 938, 938-39 (Fla. 5th DCA 1994) (appellate court should confine itself to only those questions that were before the trial court). We have held that even fundamental sentencing errors must be preserved by raising them in the trial court first, either by…
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Biagi v. State, 646 So. 2d 306 (Fla. 5th DCA 1994)…W. SHARP, Judge, dissenting. We should deny certiorari review in this ease, as we should have done in Bennett v. State, 641 So. 2d 938 (Fla. 5th DCA 1994). That case involved identical rulings below made by the county court which were reviewed by the circuit court in its appellate capacity. Since the circuit court ruling was not clearly erroneous, and no miscarriage of justice was…1 / 2
Authorities Cited
- Chirogianis v. Anderson, 401 So. 2d 1322 (Fla. 1981)
- Mariani v. Schleman, 94 So. 2d 829 (Fla. 1957)
- Lipe v. City OF Miami, 141 So. 2d 738 (Fla. 1962)
- Cowart v. City OF W. Palm Beach, 255 So. 2d 673 (Fla. 1971)
- Sparta State Bank v. Pape, 477 So. 2d 3 (Fla. 5th DCA 1985)
- Theron R. Durden and Lorraine T. Durden v. Compass Points, Inc., 521 So. 2d 363 (Fla. 5th DCA 1988)