Opinion
No. 98-03199
Opinion filed April 21, 1999.
Appeal from the Circuit Court for Hillsborough County; J. Rogers Padgett, Judge, and Jack Espinosa, Jr., Judge.
Reversed and remanded.
Gerald A. Perez, Tampa, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
Arnold Adolphus Ross timely appeals the judgment and sentence adjudicating him guilty of delivery of cocaine and possession of cocaine. He was sentenced to two years in prison. We reverse.
The State filed an information charging Ross with, delivery of cocaine, and possession of cocaine. The information related to an arrest by Plant City police who employed an out-of-town undercover officer to make a drug buy from Ross. The undercover officer later identified Ross as the dealer based on a photograph supplied by local police.
Ross filed a seven page motion which was styled "Motion to Suppress Out-of-Court Identification." The motion requested suppression of evidence based upon an eighteen paragraph factual recitation and the citation of eleven authoritative cases. Defense counsel was unsuccessful before two different judges in obtaining an evidentiary hearing on the motion. Thereafter during trial, evidence which was the subject of Ross's pretrial motion was admitted over his objection and he was found guilty as charged.
We are compelled to set aside the conviction and sentence. The motion complied with Florida Rule of Criminal Procedure 3.190(h)(2) and Ross was entitled to a pretrial evidentiary hearing and ruling thereon. See Gadson v. State, 600 So.2d 1287 (Fla. 4th DCA 1992); Carter v. State, 428 So.2d 751 (Fla. 2d DCA 1983).
We, therefore, remand with directions to conduct an evidentiary hearing on Ross's motion to suppress prior to conducting a new trial.
PARKER, C.J., and CASANUEVA, J., Concur.