Florida Third District Court of Appeal – Criminal Headnotes – May 9, 2018
STATE OF FLORIDA V. MARCELO PENA – MOTION TO SUPPRESS; ILLEGAL STOP; OBSCURED LICENSE PLATE
Direct appeal by the state from a trial court order granting the defendant’s motion to suppress a confession and evidence seized during a traffic stop the defendant argued was illegal.
The arresting officer stopped the defendant for violating section 316.605(1) of the Florida statute, which requires that specified identifying marks on a license plate be visible and legible from a distance of 100 feet. A license plate frame obscured the word “Florida” at the top of the rear plate on the defendant’s automobile.
The officer learned that the defendant’s driver license had been suspended, and in the course of arresting him on a charge of driving while suspended, he conducted a search of the vehicle because, he testified, he had smelled marijuana as he was approaching the vehicle. The officer did not find marijuana, but he did find alprazolam pills. The defendant was charged with possession of a controlled substance with intent to distribute.
The trial court granted the defendant’s motion to suppress, citing a 1997 decision of the 5th District appeals court, State v. St. Jean, 697 So. 2d 956 (Fla. 5th DCA 1997), which had sustained the granting of a motion to suppress where the name of the county was obscured on the defendant’s plate. The St. Jean court observed that the lettering identifying the state and county were not large enough to be “legible” at a distance of 100 feet even if they were not covered by a plate frame, so it was unlikely the legislature intended these to be included within the statutory definition.
Here, the trial court said it was compelled to follow St. Jean, as it had not been overruled by the state supreme court, and there were no conflicting decisions from other district appeals courts.
The 3rd District Court of Appeal reversed, noting that the statute had been amended in 2005 to specify that the word “Florida” was among the markings that were not to be obscured. In a footnote, the appeals court acknowledged that this language was later removed from the statute, but it was in effect at the time the defendant was arrested.
Reversed and remanded for further proceedings.
MARQUIS LAMMONS V. STATE OF FLORIDA – IMPROPER CLOSING ARGUMENT “DENIGRATING” DEFENSE; HARMLESS ERROR
Direct appeal from conviction and sentencing for armed manslaughter.
The defendant argued the conviction should be reversed because the prosecutor in closing rebuttal argument had “denigrated” the defense by identifying various rhetorical devices the defendant’s lawyer had used in his closing argument, specifically with reference to the circumstances under which the defendant’s confession had been secured and whether that confession was voluntary.
The appeals court agreed that the prosecutor’s argument was improper, but found that the error was “harmless,” for several reasons: the prosecutor’s remark was isolated and was not repeated after an objection was sustained; there was a second, earlier confession to which the defense lawyer’s argument did not apply; and there was more than sufficient evidence apart from the confession to sustain a guilty verdict.
STATE OF FLORIDA V. CURTIS MAXWELL – MOTION TO SUPPRESS; PROBABLE CAUSE FOR SEARCH
Direct appeal by the state from a trial court order granting the defendant’s motion to suppress physical evidence — a handgun and marijuana — discovered in a pat-down search which occurred on a street near a restaurant in which a brawl had been reported.
The appeals court held that the trial court had erred in finding there was no probable cause for the search. There had been a credible report of a violent crime, the court said, which would give the responding officer reasonable cause to be concerned for his own safety. The defendant was “visibly nervous” and made “unusual” hand movements consistent with his possibly carrying a concealed weapon. And unlike a recent Massachusetts supreme court decision cited by the trial court in support of its determination that for a young black male to display “nervousness” when approached by police at night in a “high crime area,” there was no evidence before the court of a history of racial profiling in the municipality in question.