IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
PAUL J. SIMINO,
Appellant,
vs.
Appeal No. CRC 03-00028 APANO
UCN522003AP00028XXXXCR
STATE OF
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
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 (
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
___________________________________
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
Kendall S. Davidson, Esquire
Assistant State Attorney