
    TUCCI v STATE OF FLORIDA
    Case No. 90-21AC10 (County Court Case No. 88-14374MM10A)
    Seventeenth Judicial Circuit, Broward County
    August 21, 1990
    APPEARANCES OF COUNSEL
    Mark S. Gold, Esquire, for appellant.
    Dale Alan Bruschi, Esquire, Assistant State Attorney, for appellee.
   OPINION OF THE COURT

RICHARD D. EADE, Circuit Judge.

THIS CAUSE having come before this Court upon the State’s Motion for an Order Dismissing the Appellant’s Appeal, and the Court having heard argument of counsel, and being otherwise advised in the premises, makes the following findings of fact and conclusions of law.

On December 11, 1989, the State of Florida called up before this Court a Motion for an Order Dismissing the Appellant’s Appeal. The Appellant had pled guilty in the lower court and attempted to reserve his right to appeal the order denying the suppression of the blood alcohol level. The issue before this Appellate Court was whether the Appellant’s appeal from the trial court’s order denying the Appellant’s motion to suppress the Blood Alcohol level was improper, since it was not dispositive of the case. At that time this Court dismissed the Appellant’s appeal finding that the issue on appeal was not dispositive of the case and remanded to the trial court to determine if the plea should be vacated for the defendant to proceed to trial. The original plea was vacated, but the defendant repled after the trial court stated the issue on appeal was dispositive.

The Defendant refiled his appeal based on the exact issue this Court had examined in the first appeal and one that this Appellate Court had, based on the facts and legal arguments before it, found was not dispositive. After examining the court file and record on appeal, and after listening to the arguments of counsel, this Court finds that the Motion to Suppress the Blood Alcohol Level, denied by the lower court and brought before this Honorable Appellate Court a second time, without any new evidence, is not dispositive of the case below and this appeal is hereby dismissed.

It is hereupon ORDERED AND ADJUDGED that the State’s Motion be, and the same is hereby GRANTED, and that this appeal is dismissed with prejudice, and the case is hereby remanded to the County Court for the limited purpose of determining if the plea should be vacated and the defendant allowed to proceed to trial.

DONE AND ORDERED in Chambers, at the Broward County Courthouse, 201 Southeast Sixth Street, Fort Lauderdale, Broward County, Florida 33301, this 21st day of August, 1990.  