Howard v. State, BP-330

• Citation: 12 Fla. L. Weekly 2565,515 So.2d 346
• Decision Date: 10 November 1987
• Docket Number: No. BP-330,BP-330
• Parties: 12 Fla. L. Weekly 2565 Charles Canova HOWARD, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 346

515 So.2d 346

12 Fla. L. Weekly 2565

Charles Canova HOWARD, Appellant, v. STATE of Florida, Appellee.

No. BP-330.

District Court of Appeal of Florida First District.

Nov. 10, 1987.

Rehearing Denied Dec. 3, 1987.

Daniel A. McKeever, Jr., Live Oak, for appellant.

Robert A. Butterworth, Atty. Gen., John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

NIMMONS, Judge.

The present appeal stems from further proceedings held in the trial court subsequent to this Court's opinion in Howard v. State, 483 So.2d 844 (Fla. 1st DCA 1986) (hereinafter "Howard I"), an earlier appeal in this case.

Howard I involved an appeal by the appellant from the trial court's denial of his motion to suppress evidence which was seized from his home. The trial court permitted appellant to enter pleas of nolo contendere to the two counts of the information, to wit: manufacturing cannabis (count one) and possession of more than 20 grams of cannabis (count two), with leave given to appeal the denial of the suppression motion.

Appellant was arrested after officers seized evidence from both the interior and the exterior of his home pursuant to a search warrant. The affidavit relied upon in support of the search warrant related the following:

On September 25, 1984 at approximately 11:45 a.m. while on routine aerial surveillance Inv. Dale Parrish, Columbia County Sheriff's office, Affiant and Inv. Al Williams, State Attorney's Office, Third Circuit, did observe marijuana growing next to a red brick house and inside a fence surrounding the house (a further description of said house/curtilage is contained herein) located just off S.R. 238. The affiant has been a law enforcement officer for 14 years and has seen and identified growing marijuana approximately 200 times. On all occasions when affiant identified growing marijuana/cannabis and then sent the plants to the Florida Department of Law Enforcement Laboratory for expert analysis, the lab test performed by the Florida Department of Law Enforcement Crime Laboratory in Tallahassee, FL has proved positive for cannabis/marijuana.

The search warrant included the residence in the premises to be searched.

The search resulted in the seizure of assorted pills, six bags of marijuana, one plate containing marijuana, a set of gram scales from the interior of the home, and two marijuana plants from the exterior of the home.

In Howard I, this court recognized that appellant did not challenge the sufficiency of the warrant to seize the two plants from the exterior of the home. The court found that the issue in the case was limited to whether the affidavit was sufficient to establish probable cause for the issuance of the warrant to search the interior of the home. The court answered this question in the negative and held that the motion to suppress the items seized from the interior of the home should have been granted. The order was therefore reversed.

Subsequently, appellant's counsel filed in the trial court a motion seeking dismissal of both counts of the information and, implicitly, vacation of the judgments and orders placing the defendant on probation. Alternatively, appellant's motion contended that "at bare minimum," he should be "resentenced without the court considering any of the evidence subsequently suppressed." The motion was denied and appellant appeals therefrom.

Appellant essentially argues that without the evidence illegally seized from his house, he could not be convicted of either the manufacture or the possession charge. The state, on the other hand, maintains that the two cannabis plants found outside the home supports both charges. Furthermore, according to the state, at no time before the entry of the plea of nolo contendere did appellant file a motion for statement of particulars, or at a minimum, request a clarification as to which cannabis seized weighed more than 20 grams or which cannabis seized the state would rely upon as evidence in support of the manufacturing charge. Therefore, claims the state, appellant should not now be heard to complain.

The present confusion with which we must now deal was spawned by the fact that the appellant was, upon his entry of the nolo pleas, granted leave to take an Ashby ¹ appeal on the suppression issue when the issue was not dispositive of the case. And no one raised this significant point either in the trial court or on appeal. ²

It is well established that appellate review pursuant to an Ashby nolo plea is permitted only if the issue decided will be dispositive of the case regardless of the ultimate ruling on appeal. Brown v. State, 376 So.2d 382 (Fla.1979); Morgan v. State, 486 So.2d 1356 (Fla. 1st DCA 1986). As stated by the Florida Supreme Court in Brown:

The practice of allowing an appeal after a plea of nolo contendere is grounded upon the belief that "it expedites resolution of the controversy and narrows the issue to be resolved." [footnote omitted] These purposes are poorly served and, indeed, thwarted when a defendant is permitted to appeal nondispositive pretrial rulings. Instead of expediting resolution of the controversy, the procedure...