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State v. Schmitz

District Court of Appeal of Florida, Third District
Jun 12, 1984
450 So. 2d 1254 (Fla. Dist. Ct. App. 1984)

Opinion

No. 84-117.

June 12, 1984.

Appeal from the Circuit Court, Dade County, Harold Solomon, J.

Jim Smith, Atty. Gen., Julie S. Thornton, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, Rory S. Stein, Asst. Public Defender, for appellee.

Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.


The state appeals from a pre-trial order in a manslaughter-DUI case which suppressed the result of a blood alcohol test on the ground that the person who took the sample from the defendant was not authorized under Sec. 316.1932(1)(f)(2), Fla. Stat. (1981). We affirm because (a) the state attorney interposed no objection below and indeed specifically agreed that the motion to suppress was well taken, State v. Evans, 388 So.2d 1104 (Fla. 4th DCA 1980); and (b) on the merits, the ruling was entirely correct. State v. Roose, 450 So.2d 861 (Fla. 3d DCA 1984).

Whether the state's attempt to reverse an order on appeal which it represented was correct to the trial court is characterized as merely "unseemly," Finney v. State, 420 So.2d 639, 643 (Fla. 3d DCA 1982) (Pearson, J., concurring specially), or in the more pejorative terms it seems to warrant, such a change-of-face-and-heart will not be permitted to succeed. See State v. Belien, 379 So.2d 446 (Fla. 3d DCA 1980).

Affirmed.


Summaries of

State v. Schmitz

District Court of Appeal of Florida, Third District
Jun 12, 1984
450 So. 2d 1254 (Fla. Dist. Ct. App. 1984)
Case details for

State v. Schmitz

Case Details

Full title:THE STATE OF FLORIDA, APPELLANT, v. JAMES F. SCHMITZ, APPELLEE

Court:District Court of Appeal of Florida, Third District

Date published: Jun 12, 1984

Citations

450 So. 2d 1254 (Fla. Dist. Ct. App. 1984)

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The state's argument is rejected because it was not raised below. State v. Schmitz, 450 So.2d 1254 (Fla. 3d…