State v. Ashby, No. 39304

CourtUnited States State Supreme Court of Florida
Writing for the CourtADKINS; ROBERTS, C.J., ERVIN, CARLTON and BOYD, JJ., and DREW
Citation245 So.2d 225
Docket NumberNo. 39304
Decision Date03 February 1971
PartiesSTATE of Florida, Petitioner, v. Wayne Thomas ASHBY, Respondent, (two cases). STATE of Florida, Petitioner, v. Robert David CAREY, Respondent, (two cases). . Jan, 6, 1971. Rehearing Denied

Page 225

245 So.2d 225
STATE of Florida, Petitioner,
v.
Wayne Thomas ASHBY, Respondent, (two cases).
STATE of Florida, Petitioner,
v.
Robert David CAREY, Respondent, (two cases).
No. 39304.
Supreme Court of Florida.
Jan, 6, 1971.
Rehearing Denied Feb. 3, 1971.

Page 226

Robert L. Shevin, Atty. Gen., and Michael N. Kavouklis, Asst. Atty. Gen., for petitioner.

David W. Barrow, III, Pinellas, for Wayne Thomas Ashby.

Robert E. Jagger, Public Defender, and James L. DeMoully, Asst. Public Defender, for Robert David Carey.

ADKINS, Justice.

The question central to this case is whether the convictions of respondents, defendants below, resulting from the use of evidence which they contend was illegally searched for and seized by officers, can stand. The District Court of Appeal, Second District, reversed the convictions, and held that the evidence was obtained as a result of an unreasonable search and seizure. The District Court of Appeal also held that the defendants could conditionally plead nolo contendere. The opinion of the District Court of Appeal, reported at 228 So.2d 400 (Fla.App.2d, 1969), is in conflict with prior appellate decisions of this State, including the opinion of this Court in Falcon v. State, 226 So.2d 399 (Fla.1969), and the decision of the District Court of Appeal, Third District, in City of Miami Beach v. Eason, 194 So.2d 652 (Fla.App.3rd, 1967). The State petitioned for certiorari to the District Court of Appeal. We have jurisdiction.

Two issues must be resolved. First, was the evidence obtained as a result of an illegal search and seizure? Second, may defendants plead nolo contendere, reserving for appeal the question of legality of seizure of the evidence against them?

The facts of this case are as follows: Police, seeking to arrest one Allen West for armed robbery, were told by an informant that West could be found in a tavern on a specified evening. West was found there, in the company of defendants. West was arrested. Defendants talked with officers, then were driven about 1:30 a.m. to the location which they said was their residence. Shortly after, police were told by their informant that defendants actually lived with West at another location, that a stolen red car and a stolen trailer and motor could be found in the yard of the house, and that a stolen boat and motor were in the garage on the premises. Officers from the street observed a trailer and motor in the yard, and saw a red car matching the description they had been given. Upon investigation, the red car proved to carry a license tag which had been issued to another vehicle; this reinforced the suspicion that the red car was stolen. With this information, officers went onto the premises to seize the evidence

Page 227

and to arrest the defendants. Before making the arrests, they looked about. They did not carry a valid search warrant. Without intruding into or opening the garage, officers looked in through a cracked door and observed a boat and motor. A deputy later testified the evidence all was seized because officers feared defendants would attempt to get rid of the property. It is noted that defendants knew their companion had been arrested, they had given false information to officers, officers had been told by their informant that property in the yard and garage was stolen, and the red car was known to be illegally tagged. In addition, all the items of evidence are by nature easily movable, if not by defendants then possibly by others. After their arrest, and after the evidence was seized, defendants gave incriminating statements. Subsequently, they recanted and objected to use of the evidence taken from their premises on grounds of improper search and seizure. They pleaded nolo contendere, reserving...

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184 practice notes
  • State v. Forshey, No. 18549
    • United States
    • Supreme Court of West Virginia
    • April 19, 1989
    ...848 (3d Cir.1975); United States v. Burke, 517 F.2d 377 (2d Cir.1975); Cooksey v. State, 524 P.2d 1251 (Alaska 1974); State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Crosby, 338 So.2d 584 (La.1976); People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984); State v. Sery, 758 P.2d 935 (Utah A......
  • State v. Sery, No. 860333-CA
    • United States
    • Utah Court of Appeals
    • July 27, 1988
    ...if resolution of reserved issue on appeal is dispositive, refining rule first announced in Cooksey v. State, supra ); State v. Ashby, 245 So.2d 225 (Fla.1971) (approving conditional nolo contendere pleas that reserve questions of law for appeal); State v. Crosby, 338 So.2d 584 (La.1976) (co......
  • Commonwealth v. Gomez, SJC-12437
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 10, 2018
    ...consent of court).12 See Ginn v. State, 894 So.2d 793, 801-804 (Ala. Crim. App. 2004) ; Cooksey, 524 P.2d at 1255–1256 ; State v. Ashby, 245 So.2d 225, 228-229 (Fla. 1971) ; Crosby, 338 So.2d at 586–592 ; People v. Reid, 420 Mich. 326, 337, 362 N.W.2d 655 (1984) ; State v. Hodge, 1994-NMSC-......
  • Hicks v. State, No. 1D17-1830
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...the burden issue. See Fla. R. App. P. 9.140 ; see also id. , comm. notes ("This rule also incorporates the holding in State v. Ashby , 245 So. 2d 225 (Fla. 1971), and is intended to make clear that the reservation of the right to appeal a judgment based on the plea of no contest must be exp......
  • Request a trial to view additional results
184 cases
  • State v. Forshey, No. 18549
    • United States
    • Supreme Court of West Virginia
    • April 19, 1989
    ...848 (3d Cir.1975); United States v. Burke, 517 F.2d 377 (2d Cir.1975); Cooksey v. State, 524 P.2d 1251 (Alaska 1974); State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Crosby, 338 So.2d 584 (La.1976); People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984); State v. Sery, 758 P.2d 935 (Utah A......
  • State v. Sery, No. 860333-CA
    • United States
    • Utah Court of Appeals
    • July 27, 1988
    ...if resolution of reserved issue on appeal is dispositive, refining rule first announced in Cooksey v. State, supra ); State v. Ashby, 245 So.2d 225 (Fla.1971) (approving conditional nolo contendere pleas that reserve questions of law for appeal); State v. Crosby, 338 So.2d 584 (La.1976) (co......
  • Commonwealth v. Gomez, SJC-12437
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 10, 2018
    ...consent of court).12 See Ginn v. State, 894 So.2d 793, 801-804 (Ala. Crim. App. 2004) ; Cooksey, 524 P.2d at 1255–1256 ; State v. Ashby, 245 So.2d 225, 228-229 (Fla. 1971) ; Crosby, 338 So.2d at 586–592 ; People v. Reid, 420 Mich. 326, 337, 362 N.W.2d 655 (1984) ; State v. Hodge, 1994-NMSC-......
  • Hicks v. State, No. 1D17-1830
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...the burden issue. See Fla. R. App. P. 9.140 ; see also id. , comm. notes ("This rule also incorporates the holding in State v. Ashby , 245 So. 2d 225 (Fla. 1971), and is intended to make clear that the reservation of the right to appeal a judgment based on the plea of no contest must be exp......
  • Request a trial to view additional results

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