Key v. State, s. 90-3496

• Decision Date: 06 November 1991
• Docket Number: Nos. 90-3496,90-3689,s. 90-3496
• Parties: Billy KEY, Appellant, v. STATE of Florida, Appellee. 589 So.2d 348, 16 Fla. L. Week. D2831
• Court: Florida District Court of Appeals

Page 348

589 So.2d 348

Billy KEY, Appellant, v. STATE of Florida, Appellee.

Nos. 90-3496, 90-3689.

589 So.2d 348, 16 Fla. L. Week. D2831

District Court of Appeal of Florida,

First District.

Nov. 6, 1991.

Nancy A. Daniels, Public Defender, and Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Chief Judge.

These consolidated cases comprise an appeal from the denial of a motion to suppress evidence obtained in the course of a vehicle inventory, and the imposition of sentences as an habitual felony offender. Appellant contends the inventory search was invalid, because it was conducted in violation of official department policy, and the imposition of habitual felony offender sentences was improper, because appellant's prior convictions were not sequential. We affirm in part, and reverse in part.

The record reflects that on October 4, 1989, a deputy sheriff stopped appellant on suspicion of driving without a valid driver's license. In response to the deputy's signal, appellant pulled his vehicle into an old cable television site road, stopping at a point where a chain barred the road. When the deputy confirmed that appellant did not have a driver's license, he placed appellant under arrest. The vehicle appellant was driving combined the characteristics of an automobile and pick-up truck. The open truck bed contained an unsecured motorcycle and a gas can. Although the parked vehicle did not pose a traffic hazard of any kind, the deputy refused to leave it parked at the cable road until appellant's stepfather arrived to drive it home. Instead, the deputy informed appellant that the vehicle could be towed, one of the officers at the scene could drive it to the department substation, or someone designated by appellant could pick it up within a reasonable time. The deputy determined that the thirty to forty-five minutes it would take appellant's stepfather to arrive at the scene was an unreasonable period of time.

The deputy drove appellant's vehicle to the department substation, and conducted a vehicle inventory, in the course of which he discovered 110 grams of marijuana. Appellant was charged by information with possession of more than twenty grams of cannabis, in violation of section 893.13(1)(e), Florida Statutes, and of driving without a license. Subsequently, the trial court denied appellant's motion to suppress the marijuana seized during the vehicle inventory, finding the initial stop proper because based on the officer's probable cause to believe appellant was driving without a license, and finding the vehicle inventory justified under Walton County Sheriff's Department General Order No. 23, pertaining to vehicle impoundment and inventory, or as a search incident to a lawful arrest. A jury found appellant guilty as charged of possession of twenty grams or more of cannabis, and of driving with a revoked license.

After an examination of the pre-sentence investigation report, the trial court determined that appellant had five prior felony convictions, beginning in November 1986, not including the instant offenses for which appellant was before the court for sentencing. The pre-sentence investigation report indicates that appellant was sentenced on August 12, 1987, for all five prior felony convictions. In Case No. 89-367, appellant was sentenced to eight years incarceration as an habitual felony offender for possession of cannabis, and fifteen days concurrent for driving with a suspended license. Appellant then pled nolo contendere in Case No. 90-222-CF, which had been scheduled for jury trial the following week. Based upon the habitual offender findings in Case No. 89-367, appellant was sentenced to ten years incarceration as an habitual felony offender, the sentence to run concurrently with the eight-year habitual offender sentence.

Turning to the issues presented in this case, we find no error with respect to the trial court's denial of appellant's motion to suppress evidence discovered during the vehicle inventory. In Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), the Court held that the exercise of law enforcement discretion in determining whether to impound a vehicle or leave it lawfully parked after an arrest of the driver is not prohibited, "so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." 107 S.Ct. at 743. The Court emphasized that the validity of such inventory searches requires: (1) the inventory search be undertaken in good faith, that is, on the basis of something other than suspicion of evidence of criminal activity; and (2) the inventory be conducted according to standardized criteria. 107 S.Ct. at 742-743. See also State v. Wells, 539 So.2d 464, 469 (Fla.1989), judgment affirmed, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); State v. S.P., 580 So.2d 216 (Fla. 4th DCA 1991).

The underlying rationale of Bertine, and of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and Illinois v....