County Criminal Court:  CRIMINAL LAW – Search and Seizure – had defendant been ordered by officer to exit his vehicle, the encounter would have been an unlawful investigatory stop – trial court must resolve conflicting testimony as to whether defendant voluntary exited his vehicle or was ordered to exit his vehicle – trial court’s ruling is presumed correct and is supported by competent substantial evidence -- Order affirmed.  Simino v. State, No. 03-00028 APANO (Fla. 6th Cir. App. Ct. July 9, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

PAUL J. SIMINO,

                        Appellant,

vs.                                                                                            Appeal No. CRC 03-00028 APANO

                                                                                                UCN522003AP00028XXXXCR

STATE OF FLORIDA,

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Order Denying

Motion to Suppress

Judge Michael Andrews

 

J.S. Lucas Fleming, Esquire

Attorney for Appellant

 

Kendall S. Davidson, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Paul J. Simino (Simino), from the Order Denying the Defendant’s Motion to Suppress, entered April 21, 2003. Upon review of the briefs, the record, and being otherwise fully advised, the Court affirms the Order as set forth below.

            The record shows that in the early morning hours of August 23, 2002, Deputy Fleming, of the Pinellas County Sheriff’s Officer, was off-duty when he conducted a traffic stop of a vehicle for improper lane change and driving slightly out of its lane.  Deputy Page, of the same agency, was on DUI patrol and responded to the traffic stop.  Upon making contact with the driver, Melinda Clevenger, Deputy Page detected an odor of alcohol, noticed that her eyes were bloodshot and watery, and observed Clevenger crying uncontrollably.  Deputy Page decided not to conduct a DUI investigation but was uncomfortable with allowing Clevenger to drive.  Deputy Page called Clevenger’s friend, Simino, who agreed to come pick her up.  Upon his arrival, Simino exited his vehicle and approached Clevenger, Deputy Fleming and Deputy Beasley.  Deputy Page, seated in his police cruiser, observed Simino stumble slightly.  Deputy Page approached Simino and detected a distinct odor of alcohol, noticed that Simino’s eyes were bloodshot and watery, and that Simino was swaying.  Deputy Page decided to conduct a DUI investigation.  Simino failed the field sobriety and breath tests and was arrested for DUI.

            The only issue raised by Simino is whether trial court, while correctly interpreting the law, relied upon non-record evidence in applying the law and, therefore, arrived at a finding that is not based on competent substantial evidence.  On appeal, as before the trial court, Simino argues that he was unlawfully ordered by a deputy to exit his vehicle, whereas the State’s position is that Simino exited his vehicle voluntarily.  There is no disagreement between the parties that had Simino been ordered to exit his vehicle, the encounter would have been an unlawful investigatory stop.  See e.g. Popple v. State, 626 So.2d 185, 188 (Fla. 1993). 

            In reviewing the transcript, the Court finds that the Order Denying the Defendant’s Motion to Suppress must be affirmed.  A trial court’s ruling on a motion to suppress comes to the reviewing court clothed with a presumption of correctness and the reviewing court must interpret the evidence and reasonable inferences therefrom in a manner most favorable to sustaining the ruling.  See Glover v. State, 677 So.2d 374, 376 (Fla. 4th DCA 1996).  Further, the trial court determines the credibility of the witnesses and resolves conflicting evidence.  See id.  Accordingly, although there was conflicting testimony presented to the trial court, the Court finds that the trial court’s conclusion that Simino voluntarily exited his vehicle should not be disturbed on appeal.

            ORDERED AND ADJUDGED that the Order Denying the Defendant’s Motion to Suppress is affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of June 2004.

 

 

 

 

                                                                        ___________________________________

                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

 

 

 

Copies furnished to:

Judge Michael Andrews

 

J.S. Lucas Fleming, Esquire

2701 5th Avenue North

St. Petersburg, FL  33713

 

Kendall S. Davidson, Esquire

Assistant State Attorney