          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                     v.

                           RAQUEL FONSECA,
                               Appellee.

                              No. 4D17-3726

                            [January 23, 2019]

   Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case No.
17-211CF10A.

   Ashley B. Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellant.

   Raquel Fonseca, Coral Springs, pro se.

MAY, J.

   The State appeals an order granting the defendant’s motion to
suppress. The State argues the trial court erred in granting the motion
when the arresting officer failed to identify the defendant at the hearing on
the motion to suppress. We agree and reverse.

   The case arose from the defendant’s DUI arrest. An officer observed a
black Lexus SUV swerving across traffic lanes. The vehicle was traveling
sixty miles per hour in a forty mile per hour zone. The officer observed the
vehicle’s driver as she passed him. The driver had long hair and was
wearing a pink top.

   The officer activated the emergency lights and sirens in his marked
police car; the defendant’s vehicle accelerated to seventy miles per hour.
The officer terminated the pursuit when he observed the vehicle run a solid
red light and strike a valve box on the side of the road.

  The officer recorded the vehicle’s license plate number, “called it in,”
and obtained the address associated with the tag. The officer drove to the
residence where he saw the defendant exiting the Lexus’s driver’s side and
a passenger exiting the passenger’s side. The officer noticed the vehicle’s
hood was still “very hot.” The vehicle’s front passenger side was damaged.

   The defendant ignored the officer’s command to stop, attempted to
unlock the front door, but could not do so before being detained. She then
spontaneously repeated: “I’m sorry.” The defendant resisted the officer by
dropping to the ground and refusing to place her hands behind her back.

   The officer observed that she had bloodshot watery eyes, slurred
speech, was unsteady on her feet, and had a strong odor of alcohol. She
admitted to drinking vodka earlier. A second officer administered a field
sobriety test at the police station. He observed many signs of intoxication.
The defendant refused to submit to a breath test.

   The officer arrested the defendant. The State charged her with: (1)
aggravated fleeing or eluding (high speed); (2) resisting police officer
without violence; (3) DUI with property damage; (4) DUI; and (5) leaving
the scene of a crash (unattended property).

   The defendant entered a written plea of not guilty and moved to
suppress her confession for lack of corpus delicti. Her motion argued the
State had no independent evidence, aside from her confession, that she
committed the charged offenses.

   Ten months later, the trial court heard the defendant’s motion to
suppress. The arresting officer attested to the facts surrounding the
arrest, but failed to identify the defendant in court. The State did not
present any other witnesses.

    The trial court granted the defendant’s motion to suppress because the
officer identified the defendant’s sister, not the defendant, as the driver of
the car. The State moved for rehearing and argued it was not required to
establish the defendant’s identification during a motion to suppress
hearing, particularly because identity was not the issue raised in the
motion.

    The trial court found the corpus delicti rule encapsulated the officer’s
failure to identify the defendant as the driver. The judge emphasized that
he granted the motion “entirely . . . on the fact the arresting officer could
not identify the defendant . . . .”

   “When reviewing a ruling on a motion to suppress an incriminating
statement, [we] accord[] a presumption of correctness to the trial court’s

                                      2
factual findings, but independently review[] mixed questions of law and
fact that ultimately determine constitutional issues.” State v. Jackson,
120 So. 3d 88, 90 (Fla. 4th DCA 2013). “[A] trial court’s application of the
law to the historical facts is reviewed de novo.” Gilbert v. State, 104 So. 3d
1123, 1125 (Fla. 4th DCA 2012) (citation omitted).

    In the context of a DUI conviction, our supreme court defined corpus
delicti as “‘the fact that a crime has actually been committed, that someone
is criminally responsible.’” Burks v. State, 613 So. 2d 441, 443 (Fla. 1993)
(quoting Ballentine’s Law Dictionary 276 (3d ed. 1969)). It further
explained that “the identity of the defendant as the guilty party is not a
necessary predicate for the admission of a confession.” Id.

    Significantly, the trial court based its ruling on Burks. But, Burks
involved the appeal of a conviction, not a ruling on a motion to suppress.
And, language in Burks actually conflicts with the trial court’s ruling. In
short, the case argued by the defendant, and relied upon by the trial court,
is inapposite. Burks, 613 So. 2d at 443; see also Franqui v. State, 699 So.
2d 1312, 1317 (Fla. 1997) (proof of corpus delicti is required before a
confession can be admitted, but the State is not required to identify the
defendant to establish corpus delicti). 1

   We therefore reverse and remand the case to the trial court to vacate
the suppression order.

    Reversed and remanded.

DAMOORGIAN and KUNTZ, JJ., concur.

                            *         *         *

    Not final until disposition of timely filed motion for rehearing.




1The defendant also relied on State v. Hepburn, 460 So. 2d 422 (Fla. 5th DCA
1984). But, Hepburn is also distinguishable. It also involved an appeal of a
criminal conviction. But, there no one witnessed the hit-and-run, and the
defendant did not confess to the crime. Id. at 423-25.


                                      3
