State v. Whitehead, 82-2458

• Citation: 443 So.2d 196
• Decision Date: 13 December 1983
• Docket Number: No. 82-2458,82-2458
• Parties: The STATE of Florida, Petitioner, v. Crispin WHITEHEAD, Respondent.
• Court: Florida District Court of Appeals

Page 196

443 So.2d 196

The STATE of Florida, Petitioner, v. Crispin WHITEHEAD, Respondent.

No. 82-2458.

District Court of Appeal of Florida,

Third District.

Dec. 13, 1983.

Jim Smith, Atty. Gen. and Steven Jacob, Asst. Atty. Gen., for petitioner.

Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for respondent.

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

PER CURIAM.

Whitehead, contending that Section 316.1932(1)(a), Florida Statutes (Supp.1982), which provides, inter alia, that:

"The refusal to submit to a chemical breath or urine test upon the request of a law enforcement officer as provided in this section shall be admissible into evidence in any criminal proceeding."

unconstitutionally violates his privilege against self-incrimination, successfully moved in limine to prohibit the State from eliciting any testimony concerning, or commenting upon, the defendant's refusal to submit to a test to determine the alcoholic content of his blood. The order granting the motion in limine is vacated upon the authority of South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), and State v. Sowers, 442 So.2d 239 (Fla. 5th DCA 1983).

SCHWARTZ, Chief Judge (specially concurring).

Following the course I have taken in Continental Video Corp. v. Honeywell, Inc., 422 So.2d 35 (Fla. 3d DCA 1982) (Schwartz, J., specially concurring), and cases cited at n. 2, I concur in the consideration of this cause on petition for certiorari only because of the existence of State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982), about which I have already expressed my doubts, see State v. C.C., --- So.2d ---- (Fla. 3d DCA Case no. 81-2564, et al., opinion filed September 27, 1983) (en banc) (Schwartz, C.J., specially concurring), and which--were I free to do so--I would, at the least, very critically reconsider. ¹

On the merits, I agree completely that the order below was incorrect.

1 Among other things, it seems clear to me that the prerequisite for certiorari consideration that any remedy by appeal is "inadequate," 3 Fla.Jur.2d Appellate Review § 468 (1978), necessarily implies that a right to appellate review from an adverse final judgment exist in the first place. In any criminal prosecution in which the state seeks an otherwise unauthorized review of a pre-trial ruling, however, it of course does not.