J.L.A., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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J.L.A. appeals his delinquency adjudication for cocaine possession, arguing the trial court should have granted his motion to suppress evidence obtained during an allegedly unlawful search. The appellate court affirms, holding that defense counsel waived the suppression motion before trial and failed to make a contemporaneous objection when the evidence was admitted, thereby forfeiting appellate review of the constitutional issue.
The motion to suppress was waived when defense counsel announced waiver just before the scheduled hearing, and the constitutional issue was not properly preserved for appeal because no contemporaneous objection was made when the cocaine was admitted into evidence. Raising the issue in closing argument after admission did not preserve it for appellate review.
[1] A defendant waives a motion to suppress evidence by explicitly stating the motion will be waived before a hearing on the motion.
[2] A defendant's failure to make a contemporaneous objection to the admission of evidence at trial waives the issue for appellate review, even if a pretrial motion to suppre…
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Join FLexlaw to unlock all legal intelligence“I'm going to waive that motion to suppress.”
Defense counsel's statement waiving the pretrial motion to suppress immediately before the scheduled hearing, which forfeited the suppression claim
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Join FLexlaw to unlock all legal intelligenceJ.L.A. was stopped by police matching the description of a home invasion suspect. During a pat-down search purportedly looking for a handgun, an offic…
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THOMPSON, Judge.
J.L.A. appeals his delinquency adjudication and sentence for possession of less than 28 grams of cocaine. He argues on appeal that the court should have granted his motion to suppress evidence. Because the motion to suppress was waived by trial counsel, we affirm.
J.L.A. was stopped by the police because he matched the description of a suspect involved in a home invasion. During the stop, the police searched J.L.A. because of the allegation that a handgun had been used. The police told J.L.A. to put his hands on the hood of the police car and he complied. The officer felt no handgun, but did feel a small tube. J.L.A. gave the officer permission to remove the tube from his pocket saying it contained a “rock.” The tube did contain a rock of cocaine. The victim could not identify J.L.A. as the person who committed the home invasion, but J.L.A. was arrested for possession of cocaine and a delinquency petition was filed.
J.L.A. was appointed an attorney who filed a motion to suppress: In the motion, the attorney alleged there was an illegal search and seizure. Just before the scheduled hearing on the motion to suppress, the defense attorney said “I’m going to waive that motion to suppress.” The court proceeded with an adjudicatory hearing and the state presented evidence from the arresting officers and attempted to introduced the cocaine into evidence. When it was obvious that the chemist was unavailable to testify, defense counsel objected to admission of the cocaine because there was no scientific evidence that the substance was cocaine. The court continued the case to the following day, when the chemist testified that the substance was cocaine The defense raised no other objection to the admission of the cocaine and it was admitted into evidence.
The defense did not renew its motion to suppress evidence, but during closing, argument, the defense attorney argued that the cocaine should be suppressed because of an unlawful stop and search. Although the trial court made no express oral or written ruling on the defense counsel’s argument, the court stated, “I’m reasonably satisfied that the issues are preserved for appellate purposes then ... I find [J.L.A.] guilty of the offense.”
We disagree that the issues were properly reserved. Defense counsel filed-a written motion to suppress but waived the motion prior to the motion hearing. During the adjudicatory hearing, the only objection to the admission of cocaine into evidence was that there was no scientific basis for its admission. Once the chemist testified, the objection was properly overruled and the cocaine was properly admitted.
Even though J.L.A.’s pretrial motion to suppress was waived, the trial court had the discretion to consider the constitutional challenges upon appropriate objection when the evidence was offered. Fla. R.Crim. P. 3.190(h)(4); Savoie v. State, 422 So. 2d 308 (Fla.1982). It appears this was the court’s intent. However, no appropriate contemporaneous objection;was made. As a result, the issue was not preserved for appeal. Terry v. State, 668 So. 2d 954, (Fla.1996) (citing Robertson v. State, 94 Fla. 770, 775, 114 So. 534, 536 (1927)). Raising the issue in closing argument after the cocaine was admitted did not preserve the issue. Cf. McKelton v. State, 528 So. 2d 123 (Fla. 5th DCA 1988) (failure to object at trial to admission of evidence after pretrial denial of motion to suppress waives appellate review of issue). Accordingly, J.L.A’s adjudication and sentence are affirmed.
AFFIRMED.
GOSHORN and PETERSON, JJ., concur.
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Victorien T. LEE v. City OF Jacksonville, 793 So. 2d 62 (Fla. 1st DCA 2001)…for the trustees raised timely objections to admitting evidence on issues of payments). Furthermore, appellate courts have recognized this principle when directly addressing the time when an objection must be made or deemed waived. J.L.A. v. State, 707 So. 2d 380, 381 (Fla. 5th DCA 1998) (holding that contemporaneous objection to admission of evidence required and “raising the issue in closing argument after the cocaine was admitted did not preserve the issue.”) Davis v. State, 728 So. 2d 341 (Fla. 1st DCA 1…
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B.M. v. State, 915 So. 2d 649 (Fla. 2d DCA 2005)…ant specifically waives the right to [*652] have a pretrial motion to suppress heard, the trial court still has the discretion to consider constitutional challenges upon an appropriate objection when the evidence is offered at trial. J.L.A v. State, 707 So. 2d 380, 381 (Fla. 5th DCA 1998). In this case, defense counsel asserted that she was not aware of the grounds for the suppression motion before trial. The record supports defense counsel’s assertion, and the State did not contradict her statements or poin…
Authorities Cited
- Terry v. State, 668 So. 2d 954 (Fla. 1996)
- THE Florida BAR v. Schell, 422 So. 2d 308 (Fla. 1982)
- Robertson v. State, 94 Fla. 770 (Fla. 1927)
- McKELTON v. State, 528 So. 2d 123 (Fla. 5th DCA 1988)
- Lantz v. Sears, 528 So. 2d 123 (Fla. 5th DCA 1988)