State v. McCord

PER CURIAM. Petitioner, the State of Florida, challenges by petition for writ of certiorari filed in this court a trial court order denying its motion to take blood, hair and saliva samples from respondent, Foskie McCord, in a pending criminal prosecution. Peti [816] tioner also challenges an earlier trial court order granting a defense motion to suppress in the same case, but it is time barred from challenging it in this case. Certiorari review of the latter order is therefore sua sponte dismissed as untimely- As for the former order, we summarily deny certiorari based on our decision in State v. Rutherford, 707 So.2d 1129 (Fla. 4th DCA 1997), rev. den., 718 So.2d 171 (Fla.1998). While the second district apparently agrees with our decision in Rutherford, see State v. Johnson, 751 So.2d 183 (Fla. 2d DCA 2000), rev. granted, 767 So.2d 461 (Fla.2000), we certify conflict with the third and fifth district courts of appeal, particularly in State v. Fahner, 794 So.2d 712 (Fla. 3d DCA 2001); State v. Manney, 723 So.2d 928 (Fla. 5th DCA 1999). Further, we reject petitioner’s claim that the evidence in dispute here would have been inevitably discovered, as this claim was not demonstrated in the trial court. FARMER and TAYLOR, JJ., concur. POLEN, C.J., concurs specially with opinion.