Mylock v. State, No. 1D98-2719.

CourtCourt of Appeal of Florida (US)
Writing for the CourtVAN NORTWICK, J.
Citation750 So.2d 144
Decision Date27 January 2000
Docket NumberNo. 1D98-2719.
PartiesAlvin R. MYLOCK, Appellant, v. STATE of Florida, Appellee.

750 So.2d 144

Alvin R. MYLOCK, Appellant,
v.
STATE of Florida, Appellee

No. 1D98-2719.

District Court of Appeal of Florida, First District.

January 27, 2000.


750 So.2d 145
J.B. Murphy, Pensacola, for Appellant

Robert A. Butterworth, Attorney General and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.

VAN NORTWICK, J.

Alvin R. Mylock was charged with grand theft and, after the trial court entered an order denying his motion to suppress evidence seized pursuant to a search warrant, pled nolo contendere reserving his right to appeal the denial of the motion to suppress. The parties have stipulated that the suppression issue is dispositive of the case. On appeal, Mylock argues the trial court erred in denying the suppression motion, asserting that the search warrant was not issued based upon a sworn affidavit as expressly required by Article I, section 12 of the Florida Constitution and sections 933.06 and 933.18(10), Florida Statutes (1997). Although we agree with appellant that the search warrant was invalidly issued without a supporting affidavit, because the record reflects that probable cause existed to search Mylock's truck without a warrant, we affirm the denial of the motion to suppress.

Factual and Procedural Background

In lieu of a record on appeal, the parties filed a stipulated statement pursuant to Florida Rule of Appellate Procedure 9.200(a)(4). It provides:

The Parties, pursuant to Fla. R.App. P. 9.200(a)(4), stipulate that the following may be relied upon in lieu of any other record in this appeal.
On November 28, 1997, in Escambia County, Florida, private investigators of Champion Paper Mill observed what they believed to be the taking of property from its plant by the defendant, an employee of Champion. The actions of the defendant were video taped. The private investigator called the Escambia County Sheriff's Department. Upon arrival at the scene, the officers of the Escambia County Sheriff's Department detained the defendant. They observed a handle of what they believed to be a tool belonging to Champion in the cab of defendant's truck. One of the deputies called Judge Tom Johnson in order to obtain a search warrant. Judge Johnson was the "duty" judge at the time. Judge Johnson, who happened to be in the vicinity, came to the scene and upon being orally advised by the deputies as to what they had seen, and having viewed the video tape of defendant's actions, and the truck itself, issued a hand written search warrant, a copy of which is attached hereto.[1] No affidavit in support of the search warrant was obtained or presented to Judge Johnson. Armed with the search warrant, officers of the Escambia County Sheriff's Department and the private investigators of Champion Paper Mill searched the defendant's truck in which they found a tool commonly known as a "come along" and some gloves and other items which they believe belonged to Champion Paper Mill. Escambia County Sheriff's deputies and Champion Paper Mill's private investigators then went to the defendant's home after nightfall and searched the home and out building and discovered other items belonging to Champion Paper Mill.
As a result, the defendant was charged with grand theft. He sought to suppress the evidence seized as a result of the execution of the search warrant. The trial court denied the motion. If
750 So.2d 146
the motion had been granted, all evidence seized as a result of the execution of the search warrant would have been suppressed and the matter would have been dismissed.

Preservation of Issue on Appeal

The state seeks dismissal of this appeal, contending that the suppression issue is not a dispositive issue in the instant case and, therefore, that the issue was not preserved for appellate review. We cannot agree.

An issue is preserved for appeal on a nolo contendere plea only if it is dispositive of the case. Brown v. State, 376 So.2d 382, 384 (Fla.1979); State v. Carr, 438 So.2d 826, 828 (Fla.1983). We have held that "[a]n issue is dispositive only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case." Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986). Where the parties stipulate that an issue is dispositive, we will not "`go behind' the stipulation of the parties in an effort to ascertain whether the issue is truly dispositive." Phuagnong v. State, 714 So.2d 527, 528 (Fla. 1st DCA 1998)(quoting Zeigler v. State, 471 So.2d 172, 175 (Fla. 1st DCA 1985)). While we have no authority to review a trial court's ruling if it is clear that the state would be able to proceed to trial in any event, see Morgan, 486 So.2d at 1357, the instant stipulation unconditionally states that "[i]f the [suppression] motion had been granted, all evidence seized as a result of the execution of the search warrant would have been suppressed and the matter would have been dismissed." Accordingly, we have...

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9 practice notes
  • State v. Moreno-Gonzalez, No. 3D08-1094.
    • United States
    • Court of Appeal of Florida (US)
    • September 30, 2009
    ...us. The First District has considered the Conformity Clause in a case similar to the one which is now before us. In Mylock v. State, 750 So.2d 144 (Fla. 1st DCA 2000), a judge issued a search warrant on the basis of oral statements by deputy sheriffs. No affidavit was submitted. The State a......
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...v. State, 714 So.2d 527, 528 (Fla. 1st DCA 1998)(quoting Zeigler v. State, 471 So.2d 172, 175 (Fla. 1st DCA 1985))." Mylock v. State, 750 So.2d 144, 146 (Fla. 1st DCA II. By construing section 800.04(4), Florida Statutes (1997), to outlaw lewd or lascivious speech, the majority opinion dish......
  • Lester v. State, No. 1D99-28.
    • United States
    • Court of Appeal of Florida (US)
    • February 9, 2000
    ...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 ......
  • State v. Green, No. 2D05-849.
    • United States
    • Court of Appeal of Florida (US)
    • December 13, 2006
    ...specific "exigent circumstances" prevented them from doing so. See State v. Hill, 770 So.2d 280 (Fla. 5th DCA 2000); Mylock v. State, 750 So.2d 144 (Fla. 1st DCA 2000); State v. Hicks, 579 So.2d 836 (Fla. 1st DCA 1991). Once probable cause is established, the officers may search the Page 10......
  • Request a trial to view additional results
9 cases
  • State v. Moreno-Gonzalez, No. 3D08-1094.
    • United States
    • Court of Appeal of Florida (US)
    • September 30, 2009
    ...us. The First District has considered the Conformity Clause in a case similar to the one which is now before us. In Mylock v. State, 750 So.2d 144 (Fla. 1st DCA 2000), a judge issued a search warrant on the basis of oral statements by deputy sheriffs. No affidavit was submitted. The State a......
  • Morris v. State, No. 1D99-4286.
    • United States
    • Court of Appeal of Florida (US)
    • May 29, 2001
    ...v. State, 714 So.2d 527, 528 (Fla. 1st DCA 1998)(quoting Zeigler v. State, 471 So.2d 172, 175 (Fla. 1st DCA 1985))." Mylock v. State, 750 So.2d 144, 146 (Fla. 1st DCA II. By construing section 800.04(4), Florida Statutes (1997), to outlaw lewd or lascivious speech, the majority opinion dish......
  • Lester v. State, No. 1D99-28.
    • United States
    • Court of Appeal of Florida (US)
    • February 9, 2000
    ...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 ......
  • State v. Green, No. 2D05-849.
    • United States
    • Court of Appeal of Florida (US)
    • December 13, 2006
    ...specific "exigent circumstances" prevented them from doing so. See State v. Hill, 770 So.2d 280 (Fla. 5th DCA 2000); Mylock v. State, 750 So.2d 144 (Fla. 1st DCA 2000); State v. Hicks, 579 So.2d 836 (Fla. 1st DCA 1991). Once probable cause is established, the officers may search the Page 10......
  • Request a trial to view additional results

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