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House v. State

Florida Court of Appeals, First District

November 15, 2019

Jerome Jermaine House, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. Jan Shackelford, Judge.

          Andy Thomas, Public Defender, Barbara J. Busharis, Assistant Public Defender, and Kasey Lacey, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, Damaris E. Reynolds, Assistant Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

          Per Curiam.

         Affirmed.

          Roberts and Winokur, JJ., concur.

          Bilbrey, J., specially concurs with opinion.

          Bilbrey, J., specially concurring.

         Appellant challenges the judgment and sentence following his no contest plea to trafficking in cocaine and lesser drug charges. I agree that we are correct to affirm because we cannot reach the issue of whether the trial court committed error in refusing to unseal the affidavit in support of the search warrant which led to the discovery of the drugs. See Fla. R. App. P. 9.140(b)(2)(A) (listing the limited situations where a defendant can appeal following a guilty or no contest plea). I write in hope of providing guidance to trial courts regarding the sealing of affidavits in support of search warrants and to defendants when confronted with a trial court's refusal to unseal an affidavit.

         A search warrant was issued on December 21, 2017, to allow the Escambia County Sheriff's Office (ECSO) to search a residence.[1] The search warrant was based on an affidavit that purportedly established probable cause for the search. See Art. I, § 12, Fla. Const.; §§ 933.02, 933.04, & 933.18, Fla. Stat. (2017). The search warrant directed that the affidavit was to be sealed and held in the custody of the ECSO. Upon execution of the warrant, Appellant was discovered in the residence along with cocaine and various other evidence of drug trafficking. Appellant was arrested and charged with the offenses that led to his plea.

         Appellant, through counsel, filed a notice of discovery. See Fla. R. Crim. P. 3.220(a). As part of its obligation in response to the notice, the State should have disclosed and allowed Appellant to copy "any documents relating" to "any search or seizure." Fla. R. Crim. P. 3.200(b)(1)(I). This obligation includes disclosing the documents supporting the issuance of the search warrant. State v. Wooten, 260 So.3d 1060, 1066 (Fla. 4th DCA 2018) (holding that the application for issuance of a search warrant must be provided to a defendant as part of discovery).

         After the State provided discovery exhibits that did not include the affidavit, Appellant moved to unseal the affidavit filed in support of the warrant.[2] Appellant's motion alleged the "State's entire case is based upon the execution of the search warrant" and it was necessary to view the affidavit to determine whether it supported probable cause for the warrant.

         In a written response, the State opposed unsealing the affidavit and cited civil cases where third-parties were required to overcome a presumption that the records were properly sealed. See, e.g., Scott v. Nelson,697 So.2d 207 (Fla. 1st DCA 1997); Russell v. Miami Herald Pub. Co., 570 So.2d 979 (Fla. 2d DCA 1990).[3] The State further wrote that the affidavit "is related to an on-going investigation with law enforcement that ...


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