Davis v. State

Decision Date05 September 1969
Docket NumberNo. 68--551,68--551
Citation226 So.2d 257
PartiesLawrence E. DAVIS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

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

Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.

LILES, Acting Chief Judge.

Appellant was convicted of the crime of breaking and entering a dwelling house with intent to commit a misdemeanor and has appealed his conviction. He was tried by a jury which returned the verdict upon which judgment and sentence were entered.

On appeal, appellant argues that the State was improperly permitted to produce evidence obtained pursuant to a search of defendant's house. The State maintains that verbal consent was obtained from the defendant prior to conducting the search. Appellant argues that this consent was invalid as a waiver of his constitutional right against unreasonable search and seizure because he was not properly advised of his rights to have an attorney to specifically advise him on the implications of giving his consent in such a situation, to demand a search warrant, and to decline to give his consent to such a search.

The State argues that this court cannot even consider the merits of appellant's contention because appellant did not move to suppress the evidence at the proper time. The motion to suppress was made for the first time during the trial itself.

In support of its contention the State cites Moffett v. State, Fla.App.1965 179 So.2d 408; Kelly v. State, Fla.App.1967, 202 So.2d 901; New v. State, Fla.App.1968, 211 So.2d 35. Taken together, these cases stand for the proposition that a motion to suppress made for the first time at trial is improper and therefore cannot be considered for appellate review. These cases, however, do not directly control the present situation. It is accurate to say that Kelly v. State, supra, is factually directly on point, but the trial in that case occurred prior to January 1, 1968, the effective date of the new Florida Rules of Criminal Procedure, 33 F.S.A. We now hold, however, that CrPR 1.190(h)(2), in effect at the time of appellant's trial, provides that the trial judge, in his discretion, can entertain a motion to suppress illegally seized evidence during the trial where no pre-trial motion has been made.

CrPR 1.190(h)(2) provides:

'Time for Filing. The motion to suppress shall be made prior to trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion or an appropriate objection at the trial.'

The wording of this rule clearly implies that it is discretionary with the trial judge whether to entertain such a motion or objection even in cases where opportunity to make this motion did exist prior to the trial, and where defendant was aware of those grounds. In other words, the trial judge, in his discretion, may entertain this motion at anytime. Furthermore, if he finds that 'opportunity therefor did not exist or the defendant was not aware of the grounds for the motion' he Must entertain the motion to suppress when the opportunity is finally made to exist, or when the defendant first becomes aware of the grounds for the motion. If the trial judge finds that these facts exist he has no discretion but to entertain the motion.

If the motion is made during the trial for any reason, other than those enumerated in the rule, it is still discretionary with the trial judge whether to entertain the motion. If in his discretion he refuses to entertain such a motion, the reviewing court must abide by his decision unless an abuse of discretion is demonstrated.

This is the rule followed by the Federal courts pursuant to Fed.R.Crim.P. 41(e) after which CrPR 1.190(h) was substantially patterned. See, e.g., Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; United States v. Watts, 2d Cir. 1963, 319 F.2d 659; Gilbert v. United States, 9th Cir. 1962, 307 F.2d 322, cert. denied 372 U.S. 969, 83 S.Ct. 1095, 10 L.Ed.2d 132.

The reason for the new rule is logical because the purpose in not allowing a motion to suppress to be made for the first time at trial is so that the trial judge does not have to stop the trial, remove the jury, and proceed to hear argument with regard to controverted facts which may be involved in the issue of whether the evidence was illegally seized. This is a rule of convenience for the orderly process of trial and to free it from unnecessary interruption. See Moffett v. State, supra; Annot., 50 A.L.R.2d 531, 587--89. Under the new rule, and the Federal rule, it is discretionary with the trial judge whether to interrupt a trial in order to determine this issue. If he decides to entertain this motion it is then his decision that results in interruption of the trial, and once the trial has been interrupted the reason for the old rule vanishes, whether the judge subsequently grants or denies the motion. Since the old rule was that where the defendant waits until trial to move to suppress illegally seized evidence he has waived his constitutional right to protest such an alleged unreasonable search, ...

To continue reading

Request your trial
21 cases
  • State v. Johnson
    • United States
    • West Virginia Supreme Court
    • 1 Luglio 1988
    ...351 (Iowa 1979); State v. Smith, 66 N.C.App. 570, 312 S.E.2d 222 (1984); Koonce v. Commonwealth, 452 S.W.2d 822 (Ky.1970); Davis v. State, 226 So.2d 257 (Fla.App.1969), and that double jeopardy principles do not prohibit both a larceny and breaking and entering conviction arising out of a s......
  • Porter v. State
    • United States
    • Florida District Court of Appeals
    • 7 Marzo 1978
    ...3d DCA 1972); Dickenson v. State, 261 So.2d 561 (Fla. 3d DCA 1972); Darrigo v. State, 243 So.2d 171 (Fla. 2d DCA 1971); Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969); Simpson v. State, 211 So.2d 862 (Fla. 3d DCA 1968); Tennant v. State, 205 So.2d 324 (Fla. 1st DCA 1967); Coggins v. State......
  • Com. v. Dressner
    • United States
    • Pennsylvania Superior Court
    • 27 Febbraio 1975
    ...P.2d 461 (1956); People v. Overton, 293 Mich. 44, 291 N.W. 216 (1940); State v. McLennan, 40 Idaho 286, 231 P. 718 (1925); Davis v. State, 226 So.2d 257 (Fla.1969). Fourth, the fact of some prior cooperation by the consenter which produced no incriminating evidence indicates the voluntarine......
  • State v. Osvath
    • United States
    • Florida District Court of Appeals
    • 25 Ottobre 1995
    ...(Fla.1972); Dickenson v. State, 261 So.2d 561 (Fla. 3d DCA 1972); Darrigo v. State, 243 So.2d 171 (Fla. 2d DCA 1971); Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969); Blatch v. State, 216 So.2d 261, 264 (Fla. 3d DCA 1968), cert. denied, 225 So.2d 532 (Fla.1969); Simpson v. State, 211 So.2d......
  • 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