State v. Brea

• Decision Date: 29 December 1987
• Docket Number: No. 86-3210,86-3210
• Citation: 13 Fla. L. Weekly 20,525 So.2d 907
• Parties: 13 Fla. L. Weekly 20 The STATE of Florida, Appellant, v. Cesareo BREA, Appellee.
• Court: Florida District Court of Appeals

Page 907

525 So.2d 907

13 Fla. L. Weekly 20

The STATE of Florida, Appellant, v. Cesareo BREA, Appellee.

No. 86-3210.

District Court of Appeal of Florida Third District.

Dec. 29, 1987.

Rehearing Denied Feb. 11, 1988.

Robert A. Butterworth, Atty. Gen. and Charles M. Fahlbusch, Miami, for appellant.

Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellee.

Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.

SCHWARTZ, Chief Judge.

The state, purportedly invoking Florida Rule of Appellate Procedure 9.140(c)(1)(B), seeks appellate review of a pretrial order granting the defendant-appellee's motion to decline to admit an alleged co-conspirator's statements into evidence. The basis of the ruling below was that the co-conspirator, who was then a co-defendant, had been granted a directed verdict in his favor on the grounds of entrapment in an earlier trial, thus, it was reasoned, rendering it impossible for him to act as a member of the conspiracy. We do not reach the merits of this controversy because we have no jurisdiction to review it.

Specifically, we hold that the only provision of Rule 9.140(c)(1)(B) relied upon by the state, that which permits review by appeal of an order suppressing "confessions [or] admissions," does not apply. In attempting the task of reconciling ¹ the supreme court's decisions in State v. Palmore, 495 So.2d 1170 (Fla.1986) and McPhadder v. State, 475 So.2d 1215 (Fla.1985), and its specific disapproval in Palmore of our holding in State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), we conclude that an order is appealable as involving an admission ² only if the statement is made--in whatever context--by the defendant himself, as in Palmore and Steinbrecher, but not when it is made vicariously through another party, even a co-perpetrator, as in McPhadder. See People v. Hobbs, 400 Ill. 143, 79 N.E.2d 202 (1948) ("admission" is adverse statement of defendant); Geer v. State, 92 Nev. 221, 548 P.2d 946 (1976) (same); State v. Lenarchick, 74 Wis.2d 425, 247 N.W.2d 80 (1976) (same).

Thus, notwithstanding that co-conspirators' statements are characterized as a matter of the law of evidence as "admissions," see § 90.803(18)(e), Fla.Stat. (1985), the order in question here is no more than a routine ruling concerning admissibility which could as well have been made during the trial itself--when it would have concededly been entirely unreviewable. The order may not therefore be considered such an admission as a matter of the law of appellate review. See also State v. Langer, 490 So.2d 1019 (Fla. 5th DCA 1986). In accordance with our repeated rulings that such orders may likewise not be considered on certiorari, State v. Arriagada, 508 So.2d 1247 (Fla. 3d DCA 1987); State v. Cecil, 508 So.2d 1249 (Fla. 3d DCA 1987), we dismiss the appeal. We certify to the supreme court that this cause involves the same question of great public importance framed in Arriagada and Cecil.

Appeal dismissed, question...