Harris v. State, 85-774
| Decision Date | 14 February 1986 |
| Docket Number | No. 85-774,85-774 |
| Citation | 11 Fla. L. Weekly 440,483 So.2d 111 |
| Parties | 11 Fla. L. Weekly 440 Timothy HARRIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
We reject defendant Timothy Harris's contention that the trial court erred in denying his motion to suppress evidence seized as a result of a warrantless search, as well as his argument that his concurrent sentences must be corrected so that each reflects the same pretrial confinement time. However, we agree that one of his sentences exceeds the statutory maximum and must be corrected.
Defendant was placed on probation in January 1983 for the offense of obstructing a police officer with violence. In April 1984, he was again placed on probation for burglary and attempted sexual battery.
In December 1984, defendant was charged with felony possession of marijuana, and as a result, he was charged with violation of probation. Defendant filed a motion to suppress the marijuana obtained from a search of his person. The trial court denied the motion. Thereafter he pled nolo contendere to all these charges, reserving the right to appeal the denial of his motion.
The trial court sentenced defendant to serve concurrent prison sentences of five years for the obstructing violation, seventeen years for each of the sexual battery and burglary counts, and five years for the possession conviction. The court awarded the following credit time for his pretrial incarceration: 263 days for the obstructing sentence, 296 days on each of the burglary and attempted sexual battery terms, and 60 days on the possession of marijuana conviction.
The defendant posits three grounds for his appeal. First, he argues that because his consent to a warrantless search by the police officers was merely submission to apparent authority, the trial court erred in denying his motion to suppress. We disagree.
One of the recognized exceptions to the warrant requirement in cases of search and seizure is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In Florida, the state must show voluntary consent by clear and convincing evidence. Norman v. State, 379 So.2d 643, 646 (Fla.1980). A determination of voluntariness to a search is to be made from the totality of the circumstances. Norman at 646.
Here, the officers approached defendant in a public place, told him of their suspicions, read him his Miranda rights, and requested permission to search him. The defendant then gave his consent. We find no evidence in the record to indicate any resistance on the part of the defendant or any coercive actions or statements by the police which would indicate defendant's consent was anything but freely given. Accordingly, we find that the state met its burden of showing voluntary consent by clear and convincing evidence.
Next, defendant contends the court erred in failing to award credit time of 296 days for each concurrent sentence. He cites to Martin v. State, 452 So.2d 938 (Fla. 2d DCA 1984), wherein we held that a defendant sentenced for multiple offenses is entitled to have his...
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