Fieselman v. State

• Decision Date: 22 November 1988
• Docket Number: No. 87-2155,87-2155
• Citation: 13 Fla. L. Weekly 2564,537 So.2d 603
• Parties: 13 Fla. L. Weekly 2564 Daniel FIESELMAN, Petitioner, v. The STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 603

537 So.2d 603

13 Fla. L. Weekly 2564

Daniel FIESELMAN, Petitioner, v. The STATE of Florida, Respondent.

No. 87-2155.

District Court of Appeal of Florida,

Third District.

Nov. 22, 1988.

Rehearing Denied Dec. 28, 1988.

Hall and Hedrick and M. Lewis Hall, III, Miami, for petitioner.

Robert A. Butterworth, Atty. Gen., and Richard L. Kaplan, Asst. Atty. Gen., for respondent.

Before SCHWARTZ, C.J., and BARKDULL and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

Daniel Fieselman was charged in the county court with being in actual physical control of a vehicle while under the influence of alcoholic beverages, in violation of Section 316.193(1)(a), Florida Statutes (1985). Fieselman moved to dismiss the charge on the ground that the undisputed facts established that, although he was indisputably under the influence, he was not in actual physical control of the vehicle. The county court dismissed the charge, and the State appealed to the circuit court, which, sitting in its appellate capacity, reversed the county court's order and remanded the cause for further proceedings. The defendant has petitioned this court to issue a writ of certiorari to review the circuit court's order. We deny the defendant's petition.

I.

We consider first whether the decision of the circuit court is one properly reviewable by certiorari.

In Baker v. State, 518 So.2d 457 (Fla. 5th DCA 1988), the Fifth District refused to exercise its certiorari jurisdiction to review a circuit court's reversal of a county court's order dismissing a criminal information. Its reasoning was succinct: a circuit court's order on appeal reversing a county court's dismissal and a circuit court's order at the trial level denying a motion to dismiss "amount to the same thing"; and since, without dispute, the latter is unreviewable by certiorari, the former is likewise unreviewable. Id. at 458.

We do not agree that a trial court order denying a motion to dismiss criminal charges "amounts to the same thing" as a decision of a court, sitting in an appellate capacity, which reverses a trial court's dismissal of criminal charges. To be sure, in each instance the criminal charge remains pending in the trial court, and a plenary appeal to the court having appellate jurisdiction will lie from a future conviction. And, ordinarily, the availability of an eventual plenary appeal is said to bar certiorari review of an interlocutory decision of a trial court denying a motion to dismiss. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987); Brooks v. Owens, 97 So.2d 693 (Fla.1957); Kilgore v. Bird, 149 Fla. 570, 6 So.2d 541 (1942). However, in our view, this oft-stated rule does not bar certiorari review of an appellate decision of a circuit court which reverses a trial (county) court's order granting a motion to dismiss.

The sole criterion for certiorari review of a circuit court appellate decision is whether the decision departs from the essential requirements of the law, Combs v. State, 436 So.2d 93 (Fla.1983); see also City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), and the availability vel non to the ultimately convicted defendant of an adequate remedy by appeal is simply irrelevant. ¹ This is so because, unlike a trial court decision which concerns and binds only the immediate litigants, an appellate decision--including, of course, one by the circuit court--establishes law beyond the case in which the decision is rendered. Even as the availability of an adequate remedy by appeal in the event of ultimate conviction is not a ground upon which the Florida Supreme Court would deny certiorari review of an appellate decision of a district court reversing a trial court's dismissal of criminal charges, it is not a ground for denial of certiorari review in the present case. We thus find no impediment to our certiorari jurisdiction and, in this respect, disagree and certify conflict with the Fifth District's decision in Baker v. State, 518 So.2d 457.

II.

We turn now to the merits of the controversy. The facts are undisputed. At about 3:10 a.m., the defendant was found lying down, asleep in the front seat of his automobile. His car was in a parking lot, the car's automatic gear shift was in the park position, its key was in the ignition in the off position, its "lights" ² were on, and its engine, not running, was cold.

With considerable difficulty--presumably because the defendant was intoxicated--a police officer woke the defendant. Observing the defendant's condition and taking into account the above-described circumstances (but discounting the lack of any direct evidence that the defendant had driven the car in his intoxicated state), the officer placed the defendant under arrest for violating Section 316.193(1), Florida Statutes (1985), which provides that a person who is under the influence of, inter alia, alcoholic beverages is guilty of driving under the influence "if such person is ... in actual physical control of a vehicle within this state...."

The issue before us, as the reader by now surely knows, is whether, as the county court believed, Fieselman was as a matter of law not in actual physical control of the vehicle in which he was found under the influence of alcoholic beverages, or whether, as the circuit court later ruled, the question of Fieselman's actual physical control vel non was one for the jury to decide. ³

III.

A.

The State suggests that our task is a simple one. It contends that the present case is controlled by Griffin v. State, 457 So.2d 1070 (Fla. 2d DCA 1984), in which the court, concluding that the circumstantial evidence sufficiently established that the defendant was exercising control over the vehicle while under the influence, rejected the defendant's claim that he was entitled to a judgment of acquittal.

The evidence in Griffin was that

"at approximately 2:30 a.m., a police officer found [defendant] in the driver's seat of a car which was stationary in a traffic lane facing in a direction opposite to that in which traffic was to flow. The engine was stopped, the key was in the ignition, the lights were on, and the footbrake apparently was depressed by petitioner's foot, as indicated by the illumination of the rear brake light on the car. [Defendant] was, or appeared to be, asleep. The brake light went off when the petitioner got out of the car after the arresting officer shook him to awaken him."

Griffin v. State, 457 So.2d at 1071.

According to the court, the particular evidence which showed that the defendant was exercising control over the vehicle at the time he was found under the influence was that the "brake light, ... illuminated when the officer approached the car, went off when [the defendant] got out of the car." Id. Perhaps, as the State argues, a person like Fieselman, who is lying down asleep in the front seat of a stationary motor vehicle, the key to which is in the ignition, but the engine of which is not running, exercises as much control over a vehicle as a person who, sitting asleep in a similarly immobilized but not similarly situated automobile, happens to have his foot depressing the brake pedal. Nonetheless, it is clear from Griffin that the court attached great significance to the fact that Griffin was seated behind the wheel in a car that was found in the middle of the road. Thus, in adopting the views expressed by an Oklahoma court in Hughes v. State, 535 P.2d 1023 (Okla.Crim.App.1975), the Griffin court stressed "that an intoxicated person seated behind the steering wheel " is in actual physical control of the vehicle because "there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away." Griffin v. State, 457 So.2d at 1072 (quoting from Hughes v. State, 535 P.2d at 1024) (our emphasis).

Griffin does not stand alone in emphasizing that evidence that the defendant was found sitting behind the wheel of the vehicle is a circumstance heavily supporting a finding that the defendant was exercising control over the vehicle. Other courts reaching the same result as Griffin have similarly pointed to the defendant's upright position behind the wheel as an important part of the calculus in determining the question of the defendant's actual physical control over the vehicle. See, e.g., State v. Conley, 754 P.2d 232 (Alaska 1988) (defendant seated behind steering wheel with hands on steering wheel and keys in hand; ignition off); State v. Ruona, 133 Mont. 243, 321 P.2d 615 (1958) (defendant asleep in driver's seat, motor running, car parked in traffic lane of public street); City of Cincinnati v. Kelley, 47 Ohio St.2d 94, 351 N.E.2d85 (1976) (defendant seated behind steering wheel in possession of ignition key); State v. Webb, 78 Ariz. 8, 274 P.2d 338 (1954). ⁴ Since this crucial factor is missing in the present case, cases such as...