State v. Fortesa-Ruiz

• Decision Date: 27 February 1990
• Docket Number: No. 88-2871,A,FORTESA-RUI,88-2871
• Citation: 559 So.2d 1180
• Parties: 15 Fla. L. Weekly D549 The STATE of Florida, Appellant, v. Castor Segundoppellee.
• Court: Florida District Court of Appeals

Page 1180

559 So.2d 1180

15 Fla. L. Weekly D549

The STATE of Florida, Appellant, v. Castor Segundo FORTESA-RUIZ, Appellee.

No. 88-2871.

District Court of Appeal of Florida,

Third District.

Feb. 27, 1990.

Rehearing Denied May 18, 1990.

Robert A. Butterworth, Atty. Gen., and Monique Befeler, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and Henry H. Harnage and N. Joseph Durant, Jr., Asst. Public Defender, for appellee.

Before SCHWARTZ, C.J., and BASKIN and GERSTEN, JJ.

BASKIN, Judge.

The state appeals an order suppressing evidence obtained when defendant was stopped and frisked by police. The trial court granted the motion after the state failed to produce the arresting officer to testify at the suppression hearing. We affirm.

Castor Segundo Fortesa-Ruiz was arrested for possession of rock cocaine. On October 28, 1988, Fortesa-Ruiz filed a motion to suppress evidence. The trial court scheduled a hearing on the motion for November 21, 1988. On November 2, 1988, the trial court held a hearing which we set out in its entirety:

MR. SCHWARTZ [Fortesa-Ruiz's attorney]: We have a motion to suppress dated prior to trial date to hear the motion [to suppress].

THE COURT: How long?

MR. SCHWARTZ: Quick. I filed it about a week or so ago.

MR. ROBERTS [state attorney]: We have a notice of hearing.

THE COURT: November 7th. State, have all of your witnesses. Joint continuance to November the 9th.

The state did not object to the resetting of the hearing on the motion to suppress; it merely observed that the hearing had originally been set on another date. The state neither advised the court that it would have difficulty rescheduling its witness, nor informed the court that its witness would be unavailable on November 7th. On November 7th, however, counsel for the state informed the court that he had been unable to prevent the witness subpoena from issuing for November 21st. The trial court stated that the witness should have appeared because counsel was present when the court had rescheduled the matter the week before. The state did not request that the hearing be rescheduled. The trial court then granted the motion to suppress.

Under the fourth amendment of the United States Constitution, a warrantless search is deemed unreasonable, and evidence it yields inadmissible, unless the state establishes the reasonableness of the questioned search. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). In the case before us, the state had five days to obtain witnesses but did not meet its burden or request a postponement. After declaring the motion legally sufficient, the trial court ruled on the merits of the motion in accordance with existing law.

Finding that the state failed to rebut defendant's prima facie showing that the evidence obtained as a result of an unlawful stop and frisk was inadmissible, we affirm the trial court's suppression of the evidence. ¹ See State v. Williams, 538 So.2d 1346 (Fla. 4th DCA 1989); Irons v. State, 498 So.2d 958 (Fla. 2d DCA 1986); Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981); Black v. State, 383 So.2d 295 (Fla. 1st DCA), review denied, 392 So.2d 1371 (Fla.1980); Andress v. State, 351 So.2d 350 (Fla. 4th DCA 1977).

Affirmed.

SCHWARTZ, Chief Judge, specially concurring.

In entirely concurring, as I do, in Judge Baskin's opinion and the result it reaches, I wish to emphasize that if the state's lack of preparedness in meeting the motion to suppress by having the officer present was the result of a good faith inability to do so, the obvious remedy was a continuance. The record shows, however, that the state did not seek any such relief. Indeed, it did not ever mention the word "continuance" or anything like it, much less indicate good cause for its being granted. In the absence of a properly founded request to this effect, the trial court was perfectly correct--in fact, had no other choice--in proceeding to determine the pending, specifically scheduled, motion. As Judge Baskin's opinion demonstrates, its consequent ruling was correct.

GERSTEN, Judge, dissenting.

I respectfully dissent. I find two grounds upon which I would reverse and remand: (1) the suppression of the evidence amounted to a dismissal and is unduly harsh; and (2) the motion to suppress fails to comply with rule 3.190(h), Florida Rules of Criminal Procedure, because: (a) it does not clearly state the particular evidence sought to be suppressed; and (b) it fails to state sufficient facts which, if true, would demonstrate that the evidence is inadmissible. Both of these grounds would independently support a reversal.

I.

SUPPRESSION AMOUNTED TO AN IMPROPER DISMISSAL AND WAS UNDULY HARSH.

On August 30, 1988, appellee, Castor Segundo Fortesa-Ruiz, was arrested for possession of rock cocaine. On October 28, 1988, appellee filed a motion to suppress evidence and a hearing on the motion was scheduled for November 21, 1988. The State had subpoenaed its witnesses to appear on that date.

Meanwhile, appellee had another case pending before the same trial judge. That case, an unrelated but similar arrest for possession of cocaine, also had pending a motion to suppress. The hearing on that motion was scheduled for November 7, 1988.

On November 2, 1988, five days prior to the November 7 hearing date (set for the other unrelated case), the court, sua sponte, rescheduled the hearing in this case to coincide with the hearing in appellee's other pending case. Although both cases involved similar charges, they were otherwise unrelated, and involved different arresting officers and witnesses.

The State did not object to the rescheduling. However, the record does not reflect whether the State knew of any problems in securing the appearance of its witness for the accelerated sua sponte date. Regardless, to require the State to object to a sua sponte rescheduling is unreasonable in the absence of any known scheduling problems. Further, it is unclear from the record what effect a State objection to the rescheduling would have had.

What is clear from the record is that the State had a total of three working days to ensure the attendance of its witness on the sua sponte advanced date. ¹ On the date of the hearing, the State's witness was not present and the State advised the court that it had been unable to prevent the issuance of the subpoenas for the original scheduled date.

The record does not contain a specific State motion for continuance. However, at two different times during this hearing the State attempted to make a motion and was stopped by the court.

THE COURT: Then you should have your officer here if I did it last week. Let's go on the one we have the officer.

MS. ROBERTS (State): At this time the State--

THE COURT: I'll grant the motion in which the State is not ready.

....

MR. SCHWARTZ (Defense): What about the other case; the other motion to suppress in Mr. Fortesa's other case?

The State is not ready. We move to dismiss, lack of prosecution.

MS. ROBERTS: No, sir.

THE COURT: Court told you to have your witnesses here.

MS. ROBERTS: Your honor, I would like to make a record as to legal sufficiency....

THE COURT: What's the case in which the officer did not appear?

MS. ROBERTS: Case Number 88-29151....

THE COURT: That motion is granted on the basis that the State has failed to--

MS. ROBERTS: Can the State make a record with regard to--

THE COURT: 88-29151, motion is granted.

Thus, the court granted the motion to suppress based on the State's failure to proceed while at the same time denying the State an opportunity to make a motion either to continue or otherwise prevent the forthcoming suppression on any grounds whatsoever.

The effect of granting the motion to suppress was to preclude the State from proceeding in the prosecution of the case. A translucent observation of the trial court's ruling evinces that it was nothing more and nothing less than a dismissal for lack of prosecution.

Dismissal is a very harsh penalty to impose upon the State and is reserved for those instances where no viable alternative exists. State v. S.M.F., 546 So.2d 20 (Fla. 3d DCA 1989); State v. Del Gaudio, 445 So.2d 605 (Fla. 3d DCA), review denied, 453 So.2d 45 (Fla.1984); State v. Lowe, 398 So.2d 962 (Fla. 4th DCA 1981). There were several alternatives available to the court other than granting the motion to suppress. The court could have held the suppression hearing at a later date, or even during trial. See also State v. Daise, 508 So.2d 560 (Fla. 4th DCA 1987).

This is not to say that a trial judge cannot declare the prosecution of a case abandoned. However, such a finding of abandonment must be supported by the record. State v. Alvarez, 258 So.2d 24 (Fla. 3d DCA 1972). In those cases where an information has been dismissed for lack of prosecution, the inquiry on appeal has been on the willful or deliberate nature of the failure to proceed or to produce witnesses, coupled with an alleged prejudice to the defendant. State v. Lundy, 531 So.2d 1020 (Fla. 2d DCA 1988); State v. Thomas, 519 So.2d 1091 (Fla. 2d DCA 1988); State v. Daise, 508 So.2d at 560; State v. Wilson, 498 So.2d 1053 (Fla. 4th DCA 1986); State v. Evans, 418 So.2d 459 (Fla. 4th DCA 1982); State v. Hamilton, 387 So.2d 555 (Fla. 2d DCA 1980). In the present case the record reveals no abandonment, no willful or deliberate tactics to delay or hinder the prosecution of the case, and, since this hearing would have been the first scheduled hearing on the case after arraignment, no prejudice to appellee.

I am unpersuaded by the majority's argument that the motion was correctly granted because the State failed to rebut appellee's prima facie showing that the evidence was improperly obtained. None of the cases relied upon for this contention by the majority involve an instance where the State was precluded from presenting its witnesses. See ...