        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       SHAWNTAVIAN TUCKER,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-4508

                            [August 19, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Marc Gold, Judge; L.T. Case No. 12-011153CF10A.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   The issue presented is whether the police legally stopped appellant’s
vehicle based upon information obtained forty days earlier, and whether
that information was “stale.” We find that the information was not stale
and that the victim’s description of the vehicle, which included the color,
age, and license plate, gave the officer reasonable suspicion to conduct a
stop.

   An intruder entered the victim’s home and fled in a getaway vehicle
parked across the street after encountering the victim. The victim
described the vehicle to the police as a metallic gold older model Buick or
Oldsmobile with Florida license plate AUK509. A BOLO was issued on the
day of the incident. Forty days later, the detective assigned to the case
stopped a vehicle driven by appellant, believing the vehicle matched the
description given by the victim. The vehicle was a gold 1993 Chevy Lumina
with Florida license plate AUKQ59. Appellant was ultimately charged with
burglary and driving while license suspended or revoked.

   Appellant filed a motion to suppress, arguing that the information the
detective relied on was stale and that the detective did not have reasonable
suspicion to stop the vehicle. The trial court denied the motion based on
the license plate together with the color and age of the car. As to the
license plate, the court noted that the first three letters were the same and
that but for the Q, all the digits were correct, although two were in the
wrong position. Additionally, according to the trial court, although the
victim reported a 0 rather than a Q, it would be easy to confuse them in
the heat of the moment.

   Following the denial of the motion to suppress, appellant pled no
contest to trespass and driving while license suspended or revoked in
exchange for a sentence of concurrent terms of nine months of probation.
Appellant then filed the instant appeal.

    Initially, we reject the state’s argument that appellant did not preserve
the right to appeal the issue, as an express finding of dispositiveness is
not necessary where, as here, it can be inferred from the record. See Lamb
v. State, 55 So. 3d 751, 753 (Fla. 2d DCA 2011); Leisure v. State, 429 So.
2d 434, 436 (Fla. 1st DCA 1983). During the plea hearing, defense counsel
informed the court that appellant was reserving his right to appeal the
dispositive motion and that the state knew it was a condition of the plea.
The trial court responded, “I look forward to that.”

    Turning to the merits, in reviewing a motion to suppress, this court
defers to the trial court’s factual findings but reviews legal conclusions de
novo. Pantin v. State, 872 So. 2d 1000, 1002 (Fla. 4th DCA 2004). In
order to justify an investigatory stop, “an officer must have a reasonable,
well-founded suspicion that the person has committed, is committing, or
is about to commit a criminal offense.” Sapp v. State, 763 So. 2d 1257,
1258 (Fla. 4th DCA 2000). “Several factors are relevant in considering a
vehicle stop pursuant to a BOLO: the length of time and distance from the
offense, route of flight, specificity of the description of the vehicle and its
occupants, and the source of the BOLO information.” Id. at 1258-59.

   We agree with the trial court that the detective had a reasonable
suspicion to stop appellant’s vehicle based on the license plate together
with the distinctive color and older age of the vehicle. Although the vehicle
description was forty days old, it was not stale. “The mere lapse of
substantial amounts of time is not controlling of a question of staleness.
Staleness is to be evaluated in light of the particular facts of the case and
the nature of the criminal activity and property sought.” Brachlow v. State,
907 So. 2d 626, 629 (Fla. 4th DCA 2005) (citation omitted). Items which
are consumable, such as drugs, are more likely to become stale sooner
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than non-consumable items, which do not have the same staleness
concerns. State v. Felix, 942 So. 2d 5, 9-10 (Fla. 5th DCA 2006); Wayne
R. LaFave, 2 Search & Seizure § 3.7(a) (5th ed. 2014). As the present case
involves a non-consumable item, staleness concerns were not present. See
Brachlow, 907 So. 2d at 629 (finding information gained four years earlier
that defendant possessed videotapes of pornography was not stale because
“videotapes, unlike drugs, are non-consumable items” and “it is more
reasonable to assume that such an item will still be present in a
defendant’s house even after a substantial passage of time”); State v.
Leyva, 599 So. 2d 691 (Fla. 3d DCA 1992) (holding four- to five-week-old
knowledge that a defendant’s driver’s license was suspended was not stale
and provided the officer with the reasonable suspicion to make a valid
stop); see also United States v. Marxen, 410 F.3d 326 (6th Cir. 2005).

    Appellant also challenges the denial of his rule 3.800(b)(2) motion to
correct sentencing error. Appellant argues that because driving while
license suspended or revoked is a second-degree misdemeanor, he could
be sentenced on that count to only a term of six months of probation or
less. See §§ 322.34(2)(a), 948.15(1), Fla. Stat. (2012); Sloan v. State, 10
So. 3d 686, 687 (Fla. 2d DCA 2009); Smith v. State, 484 So. 2d 581, 583
(Fla. 1986). We agree with the trial court that this issue is not cognizable
in a rule 3.800(b) motion, because the sentence was a result of a negotiated
plea. Thus, the real objection is to the plea agreement itself. The remedy
for an illegal sentence based upon a negotiated plea is to seek to withdraw
the plea. See Haynes v. State, 106 So. 3d 481, 482 (Fla. 5th DCA 2013);
Dominguez v. State, 98 So. 3d 198, 199 (Fla. 2d DCA 2012). Accordingly,
we affirm the denial of this motion without prejudice to appellant’s right
to file an appropriate rule 3.850 motion.

   Affirmed.

STEVENSON and FORST, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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