Sommers v. State, 80-2113
| Decision Date | 26 June 1981 |
| Docket Number | No. 80-2113,80-2113 |
| Citation | 404 So.2d 366 |
| Parties | James Michael SOMMERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
On this motion to dismiss, we must consider some troubling details left in the wake of Brown v. State, 376 So.2d 382 (Fla.1979).
The state charged appellant with the sale and possession of marijuana. He then filed a motion to suppress the marijuana which law enforcement officers had seized in his home. After the court denied his motion, he tendered a plea of nolo contendere reserving the right to appeal its denial. At this point the state attorney stated that the ruling on the motion to suppress was not dispositive of the case. The court nevertheless accepted the plea and entered a judgment of guilt.
Appellant then filed an appeal contending that the court erred in denying the motion to suppress. The state responded by filing a motion to dismiss, again arguing that the issue raised in the appeal is not dispositive of the case. The significance of an issue being dispositive results from Brown v. State in which the supreme court held that a defendant could take an appeal from a judgment entered upon a conditional plea of nolo contendere only where the reserved issue was legally dispositive of the case. In the course of its opinion, the court said:
We must now ascertain what constitutes a dispositive legal issue. In most cases the determination will be a simple one. Motions testing the sufficiency of the charging document, the constitutionality of a controlling statute, or the suppression of contraband for which a defendant is charged with possession are illustrative. This case, however, presents us with one of the truly inscrutable areas confessions. In order to determine accurately whether a confession is dispositive of a case, the prosecution would have to present to the trial judge all of the evidence it intended to introduce at trial. The judge would then have to decide on the basis of hearsay and summarized information, whether there was sufficient evidence apart from the confession to support a conviction. Such a procedure would be unwieldy and time-consuming. Therefore, in order to avoid a mini-trial on the sufficiency of the evidence in each case involving a confession, we hold that as a matter of law a confession may not be considered dispositive of the case for purposes of an (State v.) Ashby (Fla., 245 So.2d 225) nolo plea.
Under this rule, the trial judge will have wide discretion to accept or reject an Ashby nolo plea based upon his perception of the dispositive nature vel non of the legal issue reserved for appeal. His decision will be overturned only upon a showing of a clear abuse of discretion.
376 So.2d at 385 (footnotes omitted).
Because the trial court had not made a specific finding that the issue was dispositive, we remanded for the purpose of permitting the court to pass on this question. Thereupon, the court entered an order which read in pertinent part as follows:
In the record received, the State felt it could have proceeded without the physical contraband present (page 62). The record is silent as to the State's actual evidence and witnesses available at trial. The record does indicate, however, that there was an accomplice, on Defendant Carrow. Carrow transacted with and was arrested by Officer Montgomery. Thereafter, Carrow agreed to cooperate with Sgt. Coats and the arrest of the instant Defendant Sommers was "set up" (pages 32-34). Carrow took the contraband to Sommers at Sommers' residence where the arrest of the Defendant Sommers and re-seizure of the contraband occurred.
The record is not clear whether any or all of the witnesses, Carrow, Coats or Montgomery were available to testify or could qualify to testify to the fact that the substance was marijuana. If they could testify, then could the Defendant be convicted without the contraband being introduced into evidence?
While there are cases of contraband being exhausted during testing and of contraband being mislaid, this Court is of the opinion that the general rule of law is that a sample of the contraband substance is necessary evidence to support a conviction and cannot be proved circumstantially.
There is no evidence before this Court that there are two separate caches of contraband as in Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976).
The Court therefore finds in the instant matter the issue of the suppression of contraband is dispositive of the case.
Obviously the trial court was convinced that without the marijuana being introduced at trial, appellant could not have been convicted of either possession or sale. We are not so sure. See United States v. Jones, 480 F.2d 954 (5th Cir.), cert. denied, 414 U.S. 1071, 94 S.Ct. 582, 38 L.Ed.2d 476 (1973) (...
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