Gomez v. State, s. 80-1328

• Decision Date: 04 August 1981
• Docket Number: Nos. 80-1328,80-1329,s. 80-1328
• Citation: 402 So.2d 1239
• Parties: German GOMEZ and Florentino Molina, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1239

402 So.2d 1239

German GOMEZ and Florentino Molina, Appellants, v. The STATE of Florida, Appellee.

Nos. 80-1328, 80-1329.

District Court of Appeal of Florida, Third District.

Aug. 4, 1981.

Rehearing Denied Sept. 28, 1981.

Bierman, Sonnett, Beiley & Shohat and Benedict P. Kuehne, Miami, for appellants.

Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.

Before HUBBART, C. J., and BARKDULL and FERGUSON, JJ.

PER CURIAM.

The judgments of conviction and sentences under review are affirmed upon a holding that: (a) the motion to suppress the evidence was properly denied by the trial court as the subject marijuana was observed by a state agent in "open view" prior to any official intrusion upon the defendant's privacy, which "open view" gave the state agent probable cause to search the defendants' boat without a search warrant and to seize the marijuana thereon, see e. g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), adopted by § 933.19, Fla.Stat. (1979); Ensor v. State, 403 So.2d 349 (Fla.1981); and (b) the motion to dismiss the information for lack of jurisdiction over the offense was properly denied by the trial court because the ground urged in support thereof could only be urged on a sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4) or on a motion for judgment of acquittal at trial.

Affirmed.