Opinion
Case No. 4D01-4745
Opinion filed February 27, 2002
Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard L. Oftedal, Judge; L.T. Case No. 00-12550CFA02.
Robert A. Butterworth, Attorney General, Tallahassee, and Judy Hyman, Assistant Attorney General, West Palm Beach, for petitioner.
No response required for respondent.
Petitioner, the State of Florida, challenges by petition for writ of certiorari filed in this court a trial court order denying its motion to take blood, hair and saliva samples from respondent, Foskie McCord, in a pending criminal prosecution. Petitioner also challenges an earlier trial court order granting a defense motion to suppress in the same case, but it is time barred from challenging it in this case. Certiorari review of the latter order is therefore sua sponte dismissed as untimely.
As for the former order, we summarily deny certiorari based on our decision in State v. Rutherford, 707 So.2d 1129 (Fla. 4th DCA 1997),rev. den., 718 So.2d 171 (Fla. 1998). While the second district apparently agrees with our decision in Rutherford, see State v. Johnson, 751 So.2d 183 (Fla. 2d DCA 2000), rev. granted, 767 So.2d 461 (Fla. 2000), we certify conflict with the third and fifth district courts of appeal, particularly in State v. Fahner, 794 So.2d 712 (Fla. 3d DCA 2001); State v. Manney, 723 So.2d 928 (Fla. 5th DCA 1999).
Further, we reject petitioner's claim that the evidence in dispute here would have been inevitably discovered, as this claim was not demonstrated in the trial court.
FARMER and TAYLOR, JJ., concur.
POLEN, C.J., concurs specially with opinion.
While the law in this district is controlled by the en banc majority's decision in Rutherford, I still hold to the views I expressed in my dissent in that case. In particular, I believe that the State should be permitted to have a second subpoena issued, once the procedural and substantive requirements of section 315.3025(4)(d), Fla. Stat., are met.See Hunter v. State, 639 So.2d 72 (Fla. 5th DCA),rev. denied, 649 So.2d 233 (Fla. 1994).