Finney v. State

• Decision Date: 05 October 1982
• Docket Number: No. 79-1936,79-1936
• Parties: Logan FINNEY, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 639

420 So.2d 639

Logan FINNEY, Appellant, v. The STATE of Florida, Appellee.

No. 79-1936.

District Court of Appeal of Florida,

Third District.

Oct. 5, 1982.

Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before HUBBART, C.J., and BARKDULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON MOTION FOR REHEARING EN BANC

NESBITT, Judge.

On its own motion, this court granted a rehearing en banc to review the original majority opinion due to a conflict in Furr v. State, 420 So.2d 341 (Fla. 3d DCA 1982) (Case no. 80-2203, opinion filed October 5, 1982.)

Because motions for rehearing en banc constitute an extraordinary procedural device to harmonize conflicts within a given district court of appeal, we first examine whether sufficient conflict exists to properly authorize a rehearing en banc.

Florida Rule of Appellate Procedure 9.331(c)(1) provides:

A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration is necessary to maintain uniformity in the court's decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.

No decisional law concerning employment of the device has developed but the committee notes to the rule are instructive. The notes in part provide:

This rule is patterned after the en banc rule of the United States Court of Appeals for the Fifth Circuit and should be used sparingly.

... Counsel are reminded that en banc proceedings are extraordinary and will be ordered only in the enumerated circumstances. The ground, maintenance of uniformity in the court's decisions, is the equivalent of decisional conflict as developed by Supreme Court precedent in the exercise of its conflict certiorari jurisdiction. The district courts are free, however, to develop their own concept of decisional uniformity.

Utilizing these criteria, we are attracted to the Supreme Court decision in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960) where Justice Thornal articulated the basis for the Supreme Court's conflict jurisdiction:

While conceivably there may be other circumstances, the principal situations justifying the invocation of our jurisdiction to review decisions of Courts of Appeal because of alleged conflicts are, (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court. Under the first situation the facts are immaterial. It is the announcement of a conflicting rule of law that conveys jurisdiction to us to review the decision of the Court of Appeal. Under the second situation the controlling facts become vital and our jurisdiction may be asserted only where the Court of Appeal has applied a recognized rule of law to reach a conflicting conclusion in a case involving substantially the same controlling facts as were involved in allegedly conflicting prior decisions of this Court. Florida Power & Light Co. v. Bell, Fla.1959, 113 So.2d 697.

117 So.2d at 734. ¹

We conclude that the test which has been articulated for Supreme Court conflict jurisdiction clearly describes the type of conflict this court requires in order to rehear a case en banc. A Nielsen type conflict properly activates our authority, rather than the desire of an attorney to have the entire court rehear a case which has been decided contrary to his client's interests.

Employing the test announced in Nielsen, supra, we have determined that this case involves substantially the same controlling facts as the prior case of Furr, supra. In both cases, the defendant pled nolo contendere, reserving the right to appeal the denial of his motion to suppress. The state in each instance stipulated that the motion to suppress would be dispositive. On these facts, our original decision in Finney held that despite the stipulation the issue was not dispositive and remanded for further proceedings to afford the defendant an opportunity to withdraw his plea; while in Furr, supra, the stipulation was relied upon to determine that the issue was dispositive. Because the original decision in this appeal reached a different result than that in Furr v. State, supra, on essentially the same controlling facts, we are satisfied that a Nielsen type conflict exists. Consequently, we reach the merits of the present appeal.

In Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff'd, 392 So.2d 1324 (Fla.1981), the court concluded that a stipulation by the parties that a case could not be prosecuted without the benefit of a confession, enabled the motion to suppress to be dispositive of the case. Accord, Alexander v. State, 399 So.2d 110 (Fla. 1st DCA 1981); Snell v. State, 388 So.2d 1353, 1354, n. 2 (Fla. 5th DCA 1980); Oesterle v. State, 382 So.2d 1293 (Fla. 2d DCA 1980). This court, in Sune v. State, 402 So.2d 11 (Fla. 3d DCA 1981), recognized that if there had been evidence of a stipulation between counsel, it would be appropriate to reach the merits. This decision is not contrary to Brown v. State, 376 So.2d 382 (Fla.1979) where the court expressed concern that any attempt to demonstrate that a confession was dispositive, would result in a mini-trial being conducted. Where a stipulation has been entered into by both sides, the court will not be called upon to hear testimony as to the dispositive nature of the evidence. A stipulation is the parties' recognition that, for whatever reason, they have presented all of the evidence that they care to and each is willing to abide the appellate consequences regarding the grant or denial of the motion to suppress. Because this case falls squarely in line with Jackson, supra, we must conclude that by virtue of the stipulation, the present motion to suppress is dispositive of the issue on appeal.

On the merits of the motion to suppress, we find that the motion was properly denied by the court below. The ruling of a trial court on a motion to suppress arrives in the appellate court clothed with the presumption of correctness and all reasonable inferences and deductions to be derived from the evidence will be construed in the light most favorable to sustain the trial court ruling. McNamara v. State, 357 So.2d 410, 412 (Fla.1978); Barrios v. State, 397 So.2d 440 (Fla. 3d DCA 1981).

Viewing the evidence in this light, it appears that a robbery occurred at approximately 2:15 a.m. on July 5, 1979. The victim had been assaulted, but was nonetheless able to provide the investigating officers with the description of a Buick automobile with a black vinyl top and yellow body and no license plate. Based on that information, a BOLO was released and a vehicle matching the description was stopped approximately forty blocks from the robbery scene within an hour of the incident. Fifteen minutes later, Detective Ross arrived at the scene, advised the defendant of his Miranda rights, and was given verbal permission to search the defendant's vehicle. This led to the disclosure of a watch which matched the description of the victim's stolen property. The policeman received permission and immediately took the watch to the hospital for the victim's identification. Upon receiving confirmation that it was the victim's watch, the officer returned to the station house where the defendant was in custody. After obtaining a photograph of the defendant, Detective Ross compiled a photographic lineup and returned to the hospital with it. The victim positively identified the defendant as the driver of the getaway car used in the robbery. At that point, the defendant was placed under arrest. In all, the arrest occurred approximately ninety minutes from the time when the defendant was stopped. The defendant sought to suppress the introduction of the watch and the victim's identification of it, the photographic lineup identification, and all evidence obtained therefrom including in-court identification of the defendant.

The police officers' stop of the defendant's vehicle was proper because it was supported by an articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dunlap, 392 So.2d 1366 (Fla. 3d DCA 1981). The BOLO was issued on the basis of information received directly from the victim. The vehicle described and stopped was a distinct and unusual one. It was seen at a time and place consistent with the criminal activity. See, State v. Delgado, 402 So.2d 41 (Fla. 3d DCA 1981). Consequently, there was no taint from an unconstitutional stop.

Given the right to stop the vehicle, under the circumstances, the officers were justified in detaining the defendant for approximately ninety minutes. It is permissible for officers to detain a suspect for a reasonable time while making an investigation prior to arrest. State v. Lopez, 369 So.2d 623 (Fla. 2d DCA 1979); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). In State v. Merklein, 388 So.2d 218, 219 (Fla. 2d DCA 1980), the court stated that: "[t]he reasonableness of an investigatory detention depends on the circumstances surrounding the detention, and not solely on its length. See Lopez, 369 So.2d at 625." The court found that a thirty to forty minute detention pending arrival of another officer, robbery victim, and witnesses was not unreasonable. In this...