County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – Absent fundamental error, an appellate court will not consider an issue raised for the first time on appeal, a legal argument must be initially raised at the trial court level by the presentation of a specific motion or objection at an appropriate stage of the proceedings.  Judgment and Sentence affirmed.  Murray v. State, No. 02-85 (Fla. 6th Cir. App. Ct. Sept. 25, 2002).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION

 

 

THOMAS MURRAY,

            Appellant,

 

v.                                                                     APPEAL NO.: 01-15217CFANO

 

STATE OF FLORIDA,

            Appellee

_________________________________/

 

 

Opinion filed _____________________.

 

Appeal from verdict, judgment and sentence

Pinellas County Court

County Judge Thomas B. Freeman

 

Joy K. Goodyear

Assistant Public Defender

Attorney for Appellant

 

Melissa Underwood

Assistant State Attorney

Attorney for Appellee

 

 

ORDER AND OPINION

 

            THIS MATTER is before the Court on the defendant’s appeal from the verdict, judgment and sentence entered by the Pinellas County Court following a jury trial on August 14, 2001.  After reviewing the briefs, record and applicable law, this Court affirms the verdict, judgment and sentence.

            This appeal arises from the defendant’s arrest for Driving While License Suspended.  The defense stipulated that the defendant’s driving privileges were suspended and the defendant had been properly noticed of the suspension.  At trial, the defense argued that the defendant was not the driver of the vehicle.  The pertinent facts are as follows:

            On May 11, 2001, Deputy John Henry with the Pinellas County Sheriff’s Office arrested Thomas Murray for the offense of Driving While License Suspended.  Deputy Henry testified that he was on patrol on Baskins Road in Largo, Florida and observed a vehicle, a red Fiero, that appeared to have an obscured temporary license tag.  The vehicle proceeded into a parking lot where the vehicle was then parked.  Deputy Henry testified that he was approximately fifty to seventy-five feet from the vehicle and he observed the defendant exit the vehicle from the driver’s side and proceed into the building.  As he approached the vehicle, Deputy Henry stated he was able to read the temporary tag.  Deputy Henry testified that he spoke to a female passenger within the vehicle who had exited the vehicle and got in the driver’s side of the car.  The deputy stated he pulled his vehicle behind the Fiero with sufficient room for the car to exit the parking spot.  Deputy Henry spoke with the female, Crystal Davey.  Deputy Henry testified that Ms. Davey at first stated she was the driver, but upon further conversation she stated that the defendant was driving and that his license was suspended.  Deputy Henry testified that Deputy Cressman arrived as a backup during this traffic and both officers went into the building to speak with the defendant.  Deputy Henry testified that he was going to write the defendant a citation for the offense rather than arrest him, however, the defendant continued to deny driving the vehicle.  Deputy Henry testified that the defendant did state he was driving the vehicle. 

            Deputy Cressman testified that he arrived and heard Ms. Davey tell Deputy Henry that she was the driver, however with additional questioning, Ms. Davey stated that the defendant was driving.  Deputy Cressman also testified that the defendant originally denied driving, however once he was placed under arrest, the defendant did state he was driving.  The State presented no other evidence.  The defendant moved for a judgment of acquittal.  The motion was denied. 

            The defense called Ms. Davey as its first witness.  Ms. Davey testified that the defendant was not driving the vehicle and that she was the only driver.  The defendant took the stand and denied driving the vehicle.  The defendant testified that never told the officers that he was driving the vehicle.  The defense renewed its motion for judgment of acquittal.  The motion was denied.  The jury returned a verdict of guilty on the charge of driving while license suspended.  The defendant was sentenced to a period of sixty days incarceration in the Pinellas County Jail and assessed fines and costs in the amount of $519.75. 

            In his brief, the defendant argues that once the officer was able to read the temporary tag, any basis for the stop ended.  As such, the stop was no longer investigatory and the officer should have ended the investigation.  The defendant cites Diaz v. State, 800 So.2d 326 (Fla. 2d DCA 2001) and Palmer v. State, 753 So.2d 679 (Fla. 2d DCA 2002) in support of the argument.  However, the defendant’s argument is misplaced.  The defendant at no time argued in either a motion to suppress or at trial that the officer conducted an illegal stop.  The defendant is barred in the appellate court from arguing that the stop was illegal as the issue was not raised in the trial court.  A legal argument must be raised initially in the trial court by the presentation of a specific motion or objection at an appropriate stage of the proceedings.  In the absence of fundamental error, an appellate court will not consider an issue that has been raised for the first time on appeal.  Farinas v. State, 569 So.2d 425 (Fla. 1990).  In the case at bar, the defendant did not raise the issue of the stop in the trial court.  The failure to preserve an issue for appellate review constitutes a waiver of the right to seek reversal based on that error.  In expressing the purpose of the longstanding rule requiring the preservation of error, the Supreme Court said:

 

Florida courts have traditionally held that questions not timely raised and ruled upon in the trial court will not be considered upon appeal.  This policy . . . is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and to correct errors accordingly.

 

            Because the issue was not presented to the trial court, the issue is waived for appellate review. 

            In denying the defendant’s motion for judgment of acquittal, the trial court ruled that the State’s evidence was sufficient to create a question for the jury, and the jury found the same evidence sufficient to find the defendant guilty of driving while license suspended.  “Once competent evidence has been submitted to the jury, determining credibility of witnesses is solely within the province of the jury, and its findings will not be disturbed on appeal absent a clear showing of error.” Woods v. State, 733 So.2d 980 (Fla. 1999).  A detailed review of the record fails to indicate a clear showing of error sufficient to warrant review.

 

            Accordingly, a new trial should not be awarded, as there are no legitimate grounds upon which to argue a reversal of the judgment and conviction.  It is therefore,

 

            ORDERED AND ADJUDGED that the trial court’s decision is AFFIRMED

 

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of September, 2002.

 

 

 

___________________________________

NANCY MOATE LEY

Circuit Judge

Primary Appellate Judge

 

 

 

____________________________________

W. DOUGLAS BAIRD

Circuit Judge

 

 

 

____________________________________

R. TIMOTHY PETERS

Circuit Judge

Copies furnished to:

The Honorable Thomas B. Freeman

 

Joy K. Goodyear

Assistant Public Defender

Melissa Underwood

Assistant State Attorney