Lester v. State, No. 1D99-28.

CourtCourt of Appeal of Florida (US)
Writing for the CourtBENTON, J.
Citation754 So.2d 746
PartiesCathy Darlene LESTER, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 1D99-28.
Decision Date09 February 2000

754 So.2d 746

Cathy Darlene LESTER, Appellant,
v.
STATE of Florida, Appellee

No. 1D99-28.

District Court of Appeal of Florida, First District.

February 9, 2000.


Nancy A. Daniels, Public Defender; Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Karla D. Ellis, Assistant Attorney General, Tallahassee, for Appellee.

754 So.2d 747
BENTON, J

Cathy Darlene Lester appeals an order placing her on probation. She contends the trial court erred in denying her motion to suppress evidence that was seized after a search of her person. We reverse.

After the trial court denied the motion to suppress, she entered a plea of nolo contendere to charges of possession of cocaine and drug paraphernalia, reserving the right to appeal the ruling on the motion to suppress. The trial court withheld adjudication and placed her on two years' probation on the cocaine count concurrent with one year's probation on the paraphernalia count. As part of the plea agreement, the state stipulated that the ruling on the motion to suppress was dispositive.

We have jurisdiction. See Mylock v. State, 750 So.2d 144 (Fla. 1st DCA 2000); Phuagnong v. State, 714 So.2d 527, 529 (Fla. 1st DCA 1998) ("[W]e hold that a stipulation voluntarily entered into by all parties that an issue preserved for appeal by a defendant's nolo contendere plea is dispositive will be so considered by this court."); Zeigler v. State, 471 So.2d 172, 175-76 (Fla. 1st DCA 1985); Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff'd, 392 So.2d 1324 (Fla.1981).

Steve Hough of the Okaloosa County Sheriff's Office testified at the suppression hearing that, at about half past three o'clock on the afternoon of September 30, 1998, he observed Ms. Lester, seemingly intoxicated, staggering alongside of and into the roadway at 705 Lloyd Street, beer in hand. The only witness at the hearing, Deputy Sheriff Hough testified that he stopped Ms. Lester because he felt she was endangering herself and asked her to pour out the beer. She complied. Only after the deputy sheriff ran a "warrants check" and learned that there was no outstanding warrant for her arrest did he conduct a "safety pat down" of Ms. Lester.

Patting her clothing, Deputy Sheriff Hough felt a cylindrical object in a pocket which he testified he recognized as drug paraphernalia (a pipe). Having discovered drug paraphernalia, he testified, he felt himself justified in conducting the subsequent search of Ms. Lester during which he found three pieces of a white substance that appeared to him and in fact turned out to be cocaine.

"Review of a Florida motion to suppress [can present] a mixed question of law and fact, yoked to federal law. Art. I, § 12, Fla. Const.; Perez v. State, 620 So.2d 1256 (Fla.1993)." Butler v. State, 706 So.2d 100, 101 (Fla. 1st DCA 1998). See Phuagnong v. State, 714 So.2d at 529 ("On review of the trial court's order on the suppression motion, `legal questions are subject to de novo review, while factual decisions by the trial court [viewed in light of constitutionally mandated burdens of proof] are entitled to deference commensurate with the trial judge's superior vantage point for resolving factual disputes.' State v. Setzler, 667 So.2d 343, 344-45 (Fla. 1st DCA 1995).").

At the suppression hearing, the state had the burden to prove a lawful basis for the search, once Ms. Lester demonstrated standing. On appeal, she does not argue that the deputy sheriff's reason for stopping her was invalid. But, she contends, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), before frisking a temporarily detained citizen for weapons, a law enforcement officer must have some reason to believe that the...

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9 practice notes
  • Calhoun v. State, No. 1D19-524
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 2020
    ...precedent, rendering Calhoun's seizure unlawful. See Leroy v. State , 982 So. 2d 1250, 1253 (Fla. 1st DCA 2008) ; Lester v. State , 754 So. 2d 746, 748 (Fla. 1st DCA 2000) ; Baggett v. State , 531 So. 2d 1028, 1030 (Fla. 1st DCA 1988) (collecting cases). Ironically, the only other incident ......
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...in State v. Ashby, 245 So.2d 225 (Fla.1971), to frame the issue. See Brown v. State, 376 So.2d 382, 384 (Fla.1979); Lester v. State, 754 So.2d 746, 747 (Fla. 1st DCA 2000); Griffin v. State, 753 So.2d 676, 677-78 (Fla. 1st DCA 2000). "Where the parties stipulate that an issue is dispositive......
  • McMaster v. State, No. 5D00-1672.
    • United States
    • Court of Appeal of Florida (US)
    • March 30, 2001
    ...701 So.2d 404 (Fla. 1st DCA 1997). Appellate review of a motion to suppress can present mixed questions of law and fact. Lester v. State, 754 So.2d 746 (Fla. 1st DCA 2000). The findings of fact made by the trial court are reviewed pursuant to the substantial competent evidence standard. Ikn......
  • State v. Kindle, No. 5D00-2020.
    • United States
    • Court of Appeal of Florida (US)
    • April 12, 2001
    ...beyond that period. A trial court's ruling on a motion to suppress often involves mixed questions of fact and law. Lester v. State, 754 So.2d 746 (Fla. 1st DCA 2000); Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999). The standard of review we must apply to the findings of fact is whether ......
  • Request a trial to view additional results
9 cases
  • Calhoun v. State, No. 1D19-524
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 2020
    ...precedent, rendering Calhoun's seizure unlawful. See Leroy v. State , 982 So. 2d 1250, 1253 (Fla. 1st DCA 2008) ; Lester v. State , 754 So. 2d 746, 748 (Fla. 1st DCA 2000) ; Baggett v. State , 531 So. 2d 1028, 1030 (Fla. 1st DCA 1988) (collecting cases). Ironically, the only other incident ......
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...in State v. Ashby, 245 So.2d 225 (Fla.1971), to frame the issue. See Brown v. State, 376 So.2d 382, 384 (Fla.1979); Lester v. State, 754 So.2d 746, 747 (Fla. 1st DCA 2000); Griffin v. State, 753 So.2d 676, 677-78 (Fla. 1st DCA 2000). "Where the parties stipulate that an issue is dispositive......
  • McMaster v. State, No. 5D00-1672.
    • United States
    • Court of Appeal of Florida (US)
    • March 30, 2001
    ...701 So.2d 404 (Fla. 1st DCA 1997). Appellate review of a motion to suppress can present mixed questions of law and fact. Lester v. State, 754 So.2d 746 (Fla. 1st DCA 2000). The findings of fact made by the trial court are reviewed pursuant to the substantial competent evidence standard. Ikn......
  • State v. Kindle, No. 5D00-2020.
    • United States
    • Court of Appeal of Florida (US)
    • April 12, 2001
    ...beyond that period. A trial court's ruling on a motion to suppress often involves mixed questions of fact and law. Lester v. State, 754 So.2d 746 (Fla. 1st DCA 2000); Hines v. State, 737 So.2d 1182 (Fla. 1st DCA 1999). The standard of review we must apply to the findings of fact is whether ......
  • Request a trial to view additional results

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