
    STATE OF FLORIDA v CHERRY
    Case No. 88-13169
    Thirteenth Judicial Circuit, Hillsborough County
    May 19, 1989
    APPEARANCES OF COUNSEL
    Brent Rose, Assistant State Attorney and James Barton, Assistant State Attorney, for appellant.
    Victor Pellegrino, for appellee.
   OPINION OF THE COURT

SUSAN C. BUCKLEW, Circuit Judge.

The State appeals from the Trial Court’s order granting a motion to suppress a videotape, containing no sound. The trial court is hereby affirmed.

The Appellant/State argues that the videotape of the Defendant/ Appellee’s performance of physical tests at Central Breath Testing should not have been excluded by the trial judge simply because the videotape had no sound and that the exclusion of the videotape by the trial judge constituted an abuse of discretion. The standard by which a discretionary decision must be reviewed is whether that decision was an abuse of discretion. The judge presiding over the trial is in the best position to resolve discretionary issues and it is improper to overturn a discretionary decision simply because the reviewing court might resolve the issue differently.

The trial court reviewed the tape, decided the probative value of the tape was outweighed by danger of unfair prejudice and excluded the tape. This court can find no abuse of discretion. The trial court is affirmed and the case remanded for further proceedings by the trial court.

DONE and ORDERED in Hillsborough County, Florida, this 19 th day of May, 1989.  