Saracusa v. State, 88-1073

Decision Date20 July 1988
Docket NumberNo. 88-1073,88-1073
Citation13 Fla. L. Weekly 1698,528 So.2d 520
Parties13 Fla. L. Weekly 1698 Anthony SARACUSA, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Ian Seldin, Asst. Public Defender, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Eddie J. Bell, Asst. Atty. Gen., West Palm Beach, for respondent.

PER CURIAM.

The petitioner is in custody awaiting trial on charges of possession of burglary tools, loitering and prowling, and possession of drug paraphernalia. He seeks certiorari relief from an order which compels him to appear in a lineup and to submit to the taking of a blood sample in connection with the state's investigation of several crimes which are unrelated to the charges for which he is being held.

Upon petitioner's application, this court stayed execution of the order compelling the lineup and blood test procedures, pending resolution of the petition.

We disagree with the state's argument that if error exists, it can be remedied on plenary appeal. The violation of the petitioner's rights under the fourth and fifth amendments of the United States Constitution are per se sufficient irreparable harm to invoke this court's certiorari jurisdiction.

The state filed motions to compel the petitioner's compliance to appear in a lineup and to compel the taking of his blood for testing pursuant to Florida Rule of Criminal Procedure 3.220(b)(1)(i) and (vii), and citing in addition to Gilbert v. California, 388 U.S. 263, 266, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Jones v. State, 343 So.2d 921 (Fla. 3d DCA 1977).

The criminal rule relied upon by the state, however, is properly invoked only after an information or indictment has been filed against a defendant, and then it is still subject to constitutional limitations. Fla.R.Crim.P. 3.220(b)(1).

Although the order compelling the compliance of petitioner states that probable cause was found, a reading of the transcript of the hearing held April 18, 1988 by the trial court to resolve these motions demonstrates that the trial judge specifically stated: "I am not in a position to make a finding of probable cause."

This court, after reading the arguments of counsel, and reviewing the record, finds that it was error for the...

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9 cases
  • Russell v. Pasik, 2D14–5540.
    • United States
    • Court of Appeal of Florida (US)
    • 14 Octubre 2015
    ...State, 642 So.2d 613 (Fla. 4th DCA 1994) ; Clear Channel Commc'ns, Inc. v. Murray, 636 So.2d 818 (Fla. 1st DCA 1994) ; Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988), disapproved on other grounds, Doe v. State, 634 So.2d 613 (Fla.1994). The final element of this court's ability to gra......
  • Doe v. State
    • United States
    • United States State Supreme Court of Florida
    • 31 Marzo 1994
    ...CURIAM. We have for review State v. Doe, 592 So.2d 1121 (Fla. 2d DCA 1991), wherein the court recognized conflict with Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We approve The state attorney's office in Lakeland served upon......
  • Joseph v. State
    • United States
    • Court of Appeal of Florida (US)
    • 9 Septiembre 1994
    ...(Fla. 1st DCA 1994) (certiorari to challenge order constituting invalid prior restraint, violating first amendment); Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988), disapproved on other grounds, Doe v. State, 634 So.2d 613 (Fla.1994) (fourth and fifth amendment violation reviewed by c......
  • Wyche v. State, 88-384
    • United States
    • Court of Appeal of Florida (US)
    • 29 Noviembre 1988
    ...or to establish probable cause. United States v. Mara, 410 U.S. at 22, 93 S.Ct. at 776, 35 L.Ed.2d at 103. But see Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988). CERTIORARI DENIED. 1 Section 27.04, Florida Statutes (1987), provides:"Summoning and examining witnesses for state.--The s......
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