STATE OF FLORIDA, PETITIONER,
v.
FOSKIE MCCORD, RESPONDENT
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The Fourth District Court of Appeal denied the State's petition for writ of certiorari challenging a trial court order denying the State's motion to obtain blood, hair, and saliva samples from the defendant, relying on its prior decision in State v. Rutherford and certifying conflict with other district courts on the issue.
A trial court order denying the State's motion to obtain blood, hair, and saliva samples from a criminal defendant is not subject to certiorari review under the reasoning of State v. Rutherford.
[1] A trial court's denial of the State's motion to obtain blood, hair, and saliva samples from a criminal defendant is reviewed under the standard established in State v. …
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Join FLexlaw to unlock all legal intelligenceThe State sought to obtain blood, hair, and saliva samples from Foskie McCord in a pending criminal prosecution. The trial court denied the State's mo…
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PER CURIAM.
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. Peti tioner 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.
POLEN, C.J.,
concurring specially.
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).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994)
- State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997)
- State v. Manney, 723 So. 2d 928 (Fla. 5th DCA 1999)
- State v. Zina Johnson, 751 So. 2d 183 (Fla. 2d DCA 2000)
- KEE v. State, 794 So. 2d 712 (Fla. 3d DCA 2001)
- State v. Fahner, 794 So. 2d 712 (Fla. 3d DCA 2001)