Rios v. State

483 So. 2d 39, 11 Fla. L. Weekly 172, 1986 Fla. App. LEXIS 5930
CourtDistrict Court of Appeal of Florida
DecidedJanuary 8, 1986
DocketNo. 85-121
StatusPublished
Cited by4 cases

This text of 483 So. 2d 39 (Rios v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rios v. State, 483 So. 2d 39, 11 Fla. L. Weekly 172, 1986 Fla. App. LEXIS 5930 (Fla. Ct. App. 1986).

Opinion

LEHAN, Judge.

Defendant appeals from the revocation of his probation and sentencing for trafficking in cocaine. He raises multiple points on appeal. We affirm as to all of those points except his point V in which he contends that he was not given an opportunity to select sentencing under the sentencing guidelines.

In this opinion we discuss one of those points on appeal as to which we affirm and point V upon the basis of which we remand for resentencing.

As to point V, defendant contends that the trial court erred in sentencing him within the guidelines without an affirmative election on his part to be sentenced under the guidelines. We agree. Neither defendant nor his attorney elected guidelines sentencing. The only reference to guidelines sentencing at the sentencing hearing was the following colloquy between the trial judge and defense counsel:

THE COURT: I note that you want to be sentenced within the guidelines. I note all your objections.
FERNANDEZ (Defense Counsel): And the pending motions.
THE COURT: Pardon?
[40]*40FERNANDEZ: And the pending motions.
THE COURT: First motion?
FERNANDEZ: Your Honor, I don’t have them here because I was scheduled to be in trial in Federal Court.
THE COURT: Now is the time to hear them, right now because I’m fixing to sentence right now.

Accordingly, defense counsel appeared to acquiesce to guidelines sentencing. However, we held in Blackwelder v. State, 476 So.2d 280 (Fla. 2d DCA 1985), that defense counsel's discussion of the scoresheet with the trial court did not constitute an affirmative election of guidelines sentencing. In the case at hand, there was not even discussion between the trial judge and counsel in that regard. Weaver v. State, 475 So.2d 1365 (Fla. 2d DCA 1985), which found an election of guidelines sentencing without there having been specific words by defendant or defense counsel making such an election, is distinguishable because in that case defense counsel requested that the defendant be sentenced in the low end of the guidelines range.

The defendant asserts in a point on appeal as to which we affirm that the trial court erred in its denial of defendant’s motions to exclude and to suppress evidence obtained pursuant to a search warrant which was issued on the basis of information from a confidential informant. Defendant argues that because there was no independent corroboration of the information by the informant whose veracity was not established, there was no probable cause to issue the warrant which led to the search of the defendant’s home and to the seizure of cocaine.

The test for determining the existence of probable cause based on an informant’s tip is governed by Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). There the U.S. Supreme Court revisited the previously applied two-pronged test for determining the existence of probable cause based on an informant's tip, which involved, first, the informant’s veracity and, second, the basis for his knowledge. The Court noted:

[T]hese two elements ... are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

462 U.S. at 233, 103 S.Ct. at 2329, 79 L.Ed.2d at 545. See also Leisure v. State, 437 So.2d 751 (Fla. 1st DCA 1983).

In the case here under review the “tip” was not anonymous. In fact, the informant was shown to have sworn before a circuit judge to the facts concerning defendant’s possession of cocaine. The informant described the residence to be searched and the defendant’s method of dealing in cocaine from that residence and identified the defendant as a man named Rafael. Doubtless to corroborate the information from the informant, the police ascertained that the car which was parked in the driveway of the residence belonged to the defendant who was on ten years probation for conspiracy to traffic and trafficking in cocaine.

The basis of the informant’s knowledge was his two purchases of cocaine from the defendant at the residence. The purchases were within nine days prior to the execution of the warrant. His statement that he personally purchased cocaine from a man named Rafael at the residence “entitles his tip to greater weight than might otherwise be the case.” 462 U.S. at 234, 103 S.Ct. 2330, 76 L.Ed.2d at 545.

Gates established that:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

426 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. We believe from the totali[41]*41ty of the circumstances in this case that there were sufficient indicia of reliability to support the search warrant. Unlike Yesnes v. State, 440 So.2d 628 (Fla. 1st DCA 1983), where evidence seized pursuant to a warrant based on information from a tipster was suppressed, the tipster in the case at hand was not anonymous and the information was based upon personal knowledge.

The facts of this case do not appear to be materially dissimilar to those in State v. Englehorn, 471 So.2d 1363 (Fla. 1st DCA 1984). In that ease, a motion to suppress evidence seized pursuant to a warrant based upon information from a tipster whose identity was known was found to have been properly denied. As the First District Court of Appeal said in Englehom,

Considered as a whole, the affidavit provided a substantial basis to conclude that probable cause existed, that is, that there was a “fair probability” that the contraband would be found in the particular place described in the affidavit.

Id. at 1365.

Similarly, in Leisure v. State, supra, the First District found that evidence seized pursuant to a warrant based upon a tipster’s firsthand information as to contraband located inside the defendant’s residence should not have been suppressed. Although in Leisure, as here, the tipster’s veracity as an informant appears to have not been established, the court, pursuant to Illinois v. Gates, indicated that the veracity prong of the two-pronged test previously applied under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), was not absolutely necessary.

As the Supreme Court noted in Gates, supra, “even if we entertain some doubt as to an informant’s motives, his explicit detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case.” [Citation omitted.]

437 So.2d at 753.

Blue v. State, 441 So.2d 165 (Fla.

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Bluebook (online)
483 So. 2d 39, 11 Fla. L. Weekly 172, 1986 Fla. App. LEXIS 5930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rios-v-state-fladistctapp-1986.