State of Florida v. Brady

DISTRICT COURT OF APPEAL OF FLORIDA
                       SECOND DISTRICT




                          STATE OF FLORIDA,

                                Appellant,

                                    v.

                     CHRISTOPHER LOUIS BRADY,

                                Appellee.


                            No. 2D2025-0390



                               May 6, 2026

Appeal from the Circuit Court for Manatee County; Frederick P.
Mercurio, Judge.

James Uthmeier, Attorney General, Tallahassee, and Alicia M.
Winterkorn, Assistant Attorney General, Tampa, for Appellant.

Andrea Flynn Mogensen of The Law Office of Andrea Flynn Mogensen,
P.A., Sarasota, for Appellee.


BLACK, Judge.
     The State appeals from the order granting the motion to suppress
filed by Christopher Louis Brady in his violation of probation proceeding.
Because this court lacks jurisdiction to review the order, we dismiss this
appeal.1
      In April 2024 an officer initiated a traffic stop for failing to obey a
traffic control device in violation of sections 316.074(1) and 316.089(4),
Florida Statutes (2023). Brady was the driver and sole occupant of the
vehicle. While speaking with Brady about the reason for the stop, the
officer saw that Brady was attempting to conceal a bag of marijuana.
The officer then searched the vehicle, resulting in Brady's arrest on two
drug offenses. No citations were issued for the traffic violations.
      At the time of the traffic stop, Brady was serving the probation term
of his sentences on a 2018 judgment. An affidavit of violation of
probation was filed in the 2018 case, alleging new law violations and use
or possession of drugs or narcotics.
      Brady filed a motion seeking to suppress all evidence found
following the stop of his vehicle. He alleged that the traffic stop was
invalid, citing decisional law holding that the failure to maintain a single
lane or to signal the change of lanes is a traffic violation only if another
vehicle is affected or the change of lanes is not done safely. See, e.g.,
State v. Riley, 638 So. 2d 507 (Fla. 1994); Crooks v. State, 710 So. 2d
1041 (Fla. 2d DCA 1998). A hearing on the motion to suppress was held
in February 2025, and the trial court found that there was no evidence
that Brady's actions were not done safely. The court found the stop
unlawful and suppressed all evidence seized as a result of the stop.
      Following the court's oral ruling, defense counsel inquired whether
the court was "prepared at this point to dismiss and put [Brady] back on
probation." The court stated it was not prepared to do that until after


      1 Brady filed a motion to dismiss the appeal which is rendered moot

by this opinion.
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the order had been signed and the State decided whether to appeal. The
court reiterated that the violation of probation hearing was scheduled for
the next month: "[I]f there's no other basis for the VOP, with my
suppressing the evidence, the[] [State] would not have anything to [move]
forward on. So I would hope that the[] [State] would voluntarily dismiss
the VOP. But if not, you can raise that at or before the March 17th
hearing." The order granting the motion to suppress likewise does not
dismiss the affidavit charging a violation of probation.
      The State asserts that this court has jurisdiction pursuant to
Florida Rule of Appellate Procedure 9.140(c)(1)(A), providing that the
State may appeal from orders "dismissing an affidavit charging . . . the
violation of probation." (Emphasis added.) See also § 924.07(1)(a), Fla.
Stat. (2024) ("The [S]tate may appeal from . . . [a]n order . . . dismissing
an affidavit charging . . . the violation of probation . . . ."). Rule
9.140(c)(1)(P) similarly permits the State to appeal from orders "as
otherwise provided by general law for final orders." (Emphasis added.)
However, in granting Brady's motion to suppress the trial court did not
dismiss the affidavit charging the violation of probation, and judicial
labor remains such that the order is not final. See State v. Gaines, 770
So. 2d 1221, 1224 (Fla. 2000) ("[A]n order or ruling suppressing evidence
at trial is a non-final order because judicial labor is still required to
effectuate a termination of the case."), superseded by statute on other
grounds, § 90.104(1)(b), Fla. Stat. (2003); cf. State v. Beery, 244 So. 3d
339, 341 (Fla. 2d DCA 2018) (reversing the final order of dismissal in a
violation of probation proceeding); State v. Garcia, 126 So. 3d 419, 419
(Fla. 2d DCA 2013) (reversing the final order dismissing affidavit of
violation of probation); State v. Green, 667 So. 2d 959, 961 (Fla. 2d DCA
1996) (reversing dismissal of affidavit of violation of probation); State v.

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N.F., 924 So. 2d 912, 913 (Fla. 5th DCA 2006) (concluding that order on
review was a final order ending judicial labor where "the court stated that
the [petition for revocation of probation] was constitutionally defective,
and 'so that's dismissed and we don't need the kid' ").
     The State alternatively asserts that this court has jurisdiction
pursuant to rule 9.140(c)(1)(B), authorizing the State to appeal from
orders "suppressing before trial confessions, admissions, or evidence
obtained by search and seizure." We cannot agree.
     Our approach to interpreting a rule of criminal procedure is no
different than our approach to statutory interpretation. See State v.
Rosario, 303 So. 3d 555, 560 (Fla. 5th DCA 2020). The Florida Supreme
Court has held "that [it] alone has the power to define the scope of
interlocutory appeals," including interlocutory appeals by the State.
Gaines, 770 So. 2d at 1225 (citing art. V, § 4(b)(1), Fla. Const.). "[W]e
should declare words that the Florida Supreme Court has chosen when
establishing rules of procedure to mean exactly what those words usually
mean . . . ." Rosario, 303 So. 3d at 560.
     The language of the rule is specific to suppression "before trial."
Fla. R. App. P. 9.140(c)(1)(B). Giving effect to that language, the supreme
court has held that the "procedural rules do not provide authority for the
State to appeal an order granting a motion to suppress during trial,"
contrasting rule 9.140(c)(1)(B), "which authorizes appeals of trial court
orders suppressing evidence before trial." Gaines, 770 So. 2d at 1225
(first emphasis added).
     "[T]here cannot be the imposition of probation without a formal
determination of guilt," whether through plea or trial. Maxwell v. State,
383 So. 3d 892, 896 (Fla. 1st DCA 2024); see also § 948.01(1), Fla. Stat.
(2024) (authorizing probation as an alternative sentencing disposition for

                                      4
"a defendant in a criminal case, except for an offense punishable by
death, who has been found guilty by the verdict of a jury, has entered a
plea of guilty or a plea of nolo contendere, or has been found guilty by
the court trying the case without a jury"); § 921.187(1), Fla. Stat. (2024)
(authorizing probation as a component of sentencing "alternatives
provided in this section for the disposition of criminal cases"); Fla. R.
Crim. P. 3.790(a) (treating probation as part of sentencing). Stated
differently, "[b]y the time a defendant finds himself on probation in a
criminal case, there no longer is a dispute over his guilt, so nothing left
to plead to" or proceed to trial on. Maxwell, 383 So. 3d at 896.
      The "terminology in the [violation of probation] context is
commensurate with where in the criminal process probation falls." Id.
Section 948.06(2)(c) provides that if a probationer does not admit to the
violation of probation "the court may commit him or her or release him or
her with or without bail to await further hearing." The statute further
specifies that "[a]fter such hearing, the court may revoke, modify, or
continue the probation." § 948.06(2)(e). There is no trial in the
probation violation context, and therefore there is no order "suppressing
before trial confessions, admissions, or evidence obtained by search and
seizure." See Fla. R. App. P. 9.140(c)(1)(B); Maxwell, 383 So. 3d at 896;
see also Burns v. United States, 287 U.S. 216, 222 (1932) ("The question,
then, in the case of the revocation of probation, is not one of formal
procedure either with respect to notice or specification of charges or a
trial upon charges."); Singletary v. State, 290 So. 2d 116, 121 (Fla. 4th
DCA 1974) ("As a revocation hearing is not a trial, the trial judge has
greater discretion . . . ."). This court lacks jurisdiction to review an
interlocutory order granting suppression in a violation of probation
proceeding.

                                      5
      We are aware of at least two cases wherein an appellate court
purports to review the State's appeal from an order granting suppression
in a violation of probation proceeding. See State v. Phillips, 266 So. 3d
873, 875 (Fla. 5th DCA 2019); State v. Rudy, 974 So. 2d 1164, 1165 (Fla.
4th DCA 2008). However, neither opinion provides whether the
respective affidavit of violation of probation was dismissed as a result of
the order granting suppression, thereby giving the appellate court
jurisdiction pursuant to rule 9.140(c)(1)(A).
      An order granting a motion to suppress in a violation of probation
proceeding but not dismissing the affidavit of violation of probation is not
an appealable order.2 Accordingly, this court lacks jurisdiction, and we
dismiss this appeal.
      Dismissed.


SILBERMAN and SLEET, JJ., Concur.



Opinion subject to revision prior to official publication.




      2 The nonfinal order granting suppression is not reviewable by

certiorari because the State has the right to appeal an order dismissing
an affidavit of violation of probation as the result of suppression of
evidence or following hearing and thus is not materially injured and
without adequate remedy on direct appeal. See Fla. R. App. P.
9.140(c)(1)(A); cf. State v. Johnson, 196 So. 3d 585, 587 (Fla. 5th DCA
2016) ("Certiorari review [of nonfinal pretrial orders that exclude critical
evidence] is appropriate . . . because the State has no right to a direct
appeal in the event a defendant is thereafter acquitted." (citing State v.
Gerry, 855 So. 2d 157, 159 (Fla. 5th DCA 2003))).
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