Ashby v. State, Nos. 68--647--68--650

CourtCourt of Appeal of Florida (US)
Writing for the CourtHOBSON
Citation228 So.2d 400
Docket NumberNos. 68--647--68--650
Decision Date07 November 1969
Partiesv. STATE of Florida, Appellee. Robert David CAREY, Appellant, v. STATE of Florida, Appellee.

Page 400

228 So.2d 400
v.
STATE of Florida, Appellee.
Robert David CAREY, Appellant,
v.
STATE of Florida, Appellee.
Nos. 68--647--68--650.
District Court of Appeal of Florida, Second District.
Nov. 7, 1969.
Rehearing Denied Dec. 18, 1969.

Page 401

David W. Barrow, III, Pinellas Park, for Wayne Thomas Ashby.

Robert E. Jagger, Public Defender, and Edwin I. Ford, Asst. Public Defender, Clearwater, for Robert David Carey.

Earl Faircloth, Atty. Gen., Tallahassee, and Michael N. Kavouklis, Asst. Atty. Gen., Lakeland, for appellee.

HOBSON, Chief Judge.

Defendant-appellant Robert Carey (Case Nos. 68--647 and 68--648) and defendant-appellant, Wayne Ashby (Case Nos. 68--649 and 68--650), each bring their timely appeals from judgments of guilty entered in a nonjury trial on pleas of nolo contendere and sentences imposed thereon.

Each defendant was charged with grand larceny in two different direct informations. One information charged each defendant with stealing a boat trailer and the other charged each defendant with stealing an outboard motor. On the night of September 27, 1968, two deputy sheriffs of Pinellas County were looking for a man

Page 402

named Allen West on a charge of armed robbery. During the course of their search the deputies went to the Hare and Hound Bar where they found West in the company of the two appellants herein. The deputies arrested West at that time but did not arrest appellants. Instead, Ashby and Carey were later taken to the Pinellas County Sheriff's Operational Office situated at the airport facility, arriving there at approximately 12:30 A.M. on September 28, 1968. The defendants at this time were not advised of their constitutional rights. The defendants-appellants were interrogated at this time for one to two and a half hours. Following this extensive 'conversation' the appellants were taken at their request to a certain address which they said was their house. Though appellants were free to leave at any time during this interrogation they had no method of doing so as it was an early hour in the morning and the operational facility was a good distance from any public transportation.

At approximately 3:00 A.M. the same morning, one Deputy Anderson of the Pinellas County Sheriff's Department, received information from an informant that defendants Ashby and Carey were living with West in the 2800 black of 60th Avenue. At 4:00 A.M. this same morning the informant showed the deputies the house where Ashby and Carey were alleged to then be living and it was observed at that time that a red Mustang was parked in the yard. The deputies then determined by police radio that the license tag on the Mustang was improper. At this juncture and without first obtaining a search warrant, the deputies proceeded to enter upon the premises wherein an extensive search was carried out. In doing so they determined that the boat trailer and outboard motor which are the subject matter of the information in the present case were inside a closed garage on the premises. They determined this by looking through a crack in the garage door. At the time of this search there was in the yard another boat trailer and outboard motor which did not prove to be the subject matter of the information for larceny which was subsequently filed in this suit.

At this point help was summoned and deputies were placed on all four sides of the house. Deputy Anderson then knocked on the door, and when defendant Carey came to the door Deputy Anderson jerked him outside, arrested him and all of the officers then entered the house where they arrested defendant Ashby and proceeded to search the house. The arrests made at this time were for receiving and concealing stolen property (red Mustang), a charge for which defendants were never tried, nor informed against.

The defendants were then taken to the sheriff's office where they were confronted by the sheriff's department with the evidence (boat trailer and outboard motor closed in the garage) which had been seized. When so confronted, the defendants told everything. Motions to suppress the evidence gained by this search were timely made and denied. The confessions of the defendants were admitted into evidence at the trial, as were photos of the boat trailer and boat motor, over the objection of counsel and conviction by the court without a jury ensued. The question determinative of this appeal is whether the lower court erred in denying the defendants' motion to suppress evidence obtained without a valid search warrant. However, preliminary to entertaining such question we find it necessary to dispose of a contention raised by the state, which is: 'May a defendant, after voluntarily entering a plea of nolo contendere to a criminal charge and being adjudicated guilty and sentenced thereon, raise questions on appeal concerning matters other than the sufficiency of the accusatory writ?'

It was only after the final denial of defendants' motions to suppress evidence in the instant case that the defendants withdrew their pleas of not guilty and interposed pleas of nolo contendere and waived

Page 403

jury trials. In accepting the pleas of nolo contendere, the lower court stated:

'* * * (T)hat on the proceedings on the plea of Nolo contendere, it was done specifically upon assurance from the Court and upon the understanding that the defendants waived none of their rights to object to these exhibits, and they are preserved, and all of the rights they might have are reserved.'

'Subject to the reservation of those rights, the Court will receive in evidence State's Exhibits 1, 4, 3, and 6. * * *'

'* * * (A)ll of the actions of the defendants taken in light of the motion and or the Order denying the Motion to Suppress.'

Our decision on this point is controlled by Johnston v. State, 112 Fla. 189, 150 So. 278 (1933), wherein the Supreme Court of Florida in speaking through Mr. Justice Brown stated:

'At the threshold of this case, we are confronted with the question whether or not the trial court committed reversible error in denying the motion for change of venue, and if so, whether or not under the circumstances of this case, this error was cured or waived by what subsequently transpired.

'It was only after the final denial of the motion for change of venue, which was presented anew on the day of the trial, April 18th, 1932, together with additional evidence in support thereof, that the plaintiff in error withdraw his plea of not guilty and interposed a plea of guilty, which, under the statute, required the trial judge, without a jury, to proceed to take the testimony and determine the degree of the homicide, and pass sentence accordingly. The record indicates that it was because of the denial of his motion for change of venue that the plaintiff in error, believing that he could not obtain a fair and impartial trial before a jury at the time and place of the trial, decided to change his plea, as above stated, and thus forego his constitutional right to a jury trial, and leave it to the trial judge to determine, under the statute, the degree of his guilt. Thus the error in denying the motion was not waived.'

In Johnston v. State, supra, it was because of the denial of defendant's motion for change of venue that defendant changed his plea from not guilty to guilty. In the instant case it was the denial of defendants' motions to suppress evidence that caused them to change their pleas from not guilty to pleas of nolo contendere. There is no substantial difference in the facts in the instant case which would take it out of the ruling in Johnston v. State, supra. Therefore, as regards this point, we hold that the error, if any, in denying defendants' motions for the suppression of evidence was not waived.

Furthermore, though not necessary to our decision on this point, we have the statement of the trial judge in open court in the case sub judice which statement by itself would preserve the defendants' rights on appeal to question the denial of their motions to suppress.

The state contends that the case of Peel v. State, Fla.App.1963, 150 So.2d 281, decided by this court would warrant a different result. The Peel case is not applicable as the defendant in Peel bargained a plea of nolo contendere in exchange for a life sentence to escape the electric chair. In the case sub judice the record indicates the change of plea to nolo contendere was occasioned by the trial court's denial of the motions to suppress.

We turn now to the question of whether the lower court erred in denying defendants' motions to suppress evidence seized without a search warrant and erred in not suppressing the other evidence which was the fruit of such search.

As this cause is to be reversed on the basis of an illegal search and seizure, we

Page 404

will not here decide the question of whether the arrests of defendants herein were valid but will proceed on the hypothesis that they were.

The case we initially look to in reaching our decision herein is Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23...

To continue reading

Request your trial
11 practice notes
  • United States v. Harris, No. 22742.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 12, 1970
    ...assumed or decided the limited or full retroactivity of Chimel. See Fresneda v. State, 458 P.2d 134, 143 (Alaska 1969); Ashby v. State, 228 So. 2d 400, 408 (Fla.App.1969); State v. Rhodes, 80 N.M. 729, 460 P.2d 259, 260 (1969); State v. Cullison, 173 N.W.2d 533, 540 (Iowa 1970) (dictum). Cf......
  • Sutton v. United States, No. 22210
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 19, 1970
    ...Certain state courts have reached or assumed the opposite result. See Fresneda v. State, 458 P.2d 134, 143 (Alaska 1969); State v. Ashby, 228 So. 2d 400, 404 (Fla.App.1969); State v. Cullison, 173 N.W.2d 533, 540 (Iowa 1969); State v. Rhodes, 80 N.M. 729, 460 P.2d 259 (1969); contra People ......
  • United States v. Wright, No. 23060.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 19, 1971
    ...Court, 5 Cal.App.3d 429, 85 Cal.Rptr. 354 (1970); State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970); Ashby v. State, Fla.App., 228 So.2d 400 (1969). Ashby is remarkably similar to the instant case, in that the police gained knowledge 449 F.2d 1368 of the appellant's possession of stolen......
  • Trivette v. State, No. 70-716
    • United States
    • Court of Appeal of Florida (US)
    • February 17, 1971
    ...denying the motion to suppress when the ultimate plea was entered due to the court's ruling on said motion. Ashby v. State, Fla.App.1969, 228 So.2d 400. The thrust of defendant's assignments of error is that the trial court erred in failing to sustain the motion to suppress because the arre......
  • Request a trial to view additional results
11 cases
  • United States v. Harris, No. 22742.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 12, 1970
    ...assumed or decided the limited or full retroactivity of Chimel. See Fresneda v. State, 458 P.2d 134, 143 (Alaska 1969); Ashby v. State, 228 So. 2d 400, 408 (Fla.App.1969); State v. Rhodes, 80 N.M. 729, 460 P.2d 259, 260 (1969); State v. Cullison, 173 N.W.2d 533, 540 (Iowa 1970) (dictum). Cf......
  • Sutton v. United States, No. 22210
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 19, 1970
    ...Certain state courts have reached or assumed the opposite result. See Fresneda v. State, 458 P.2d 134, 143 (Alaska 1969); State v. Ashby, 228 So. 2d 400, 404 (Fla.App.1969); State v. Cullison, 173 N.W.2d 533, 540 (Iowa 1969); State v. Rhodes, 80 N.M. 729, 460 P.2d 259 (1969); contra People ......
  • United States v. Wright, No. 23060.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 19, 1971
    ...Court, 5 Cal.App.3d 429, 85 Cal.Rptr. 354 (1970); State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970); Ashby v. State, Fla.App., 228 So.2d 400 (1969). Ashby is remarkably similar to the instant case, in that the police gained knowledge 449 F.2d 1368 of the appellant's possession of stolen......
  • Trivette v. State, No. 70-716
    • United States
    • Court of Appeal of Florida (US)
    • February 17, 1971
    ...denying the motion to suppress when the ultimate plea was entered due to the court's ruling on said motion. Ashby v. State, Fla.App.1969, 228 So.2d 400. The thrust of defendant's assignments of error is that the trial court erred in failing to sustain the motion to suppress because the arre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT