                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                                 IN THE DISTRICT COURT OF APPEAL
                                                 OF FLORIDA
                                                 SECOND DISTRICT



KEVIN MALONE,                       )
                                    )
           Petitioner,              )
                                    )
v.                                  )                    Case No. 2D15-4460
                                    )
STATE OF FLORIDA,                   )
                                    )
           Respondent.              )
___________________________________ )

Opinion filed July 8, 2016.

Petition for Writ of Certiorari to the Circuit
Court for the Twelfth Judicial Circuit for
Sarasota County; sitting in its appellate
capacity.

Brett McIntosh, Sarasota, for Petitioner.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Dawn A. Tiffin, Assistant
Attorney General, Tampa, for Respondent.


SILBERMAN, Judge.

               Kevin Malone was arrested for driving while under the influence (DUI)

based on a police officer's assessment of his level of intoxication during a traffic stop.

After he was charged with the misdemeanor offense, Malone filed a motion to suppress

in which he argued that his behavior during the traffic stop did not provide probable

cause that he had been driving while impaired. The county court granted the motion to
suppress, but the circuit court reversed. We grant Malone's petition for certiorari and

quash the circuit court's order because that court failed to apply the correct law by

reweighing the evidence.

              At the suppression hearing, the arresting officer testified that he had

observed Malone driving erratically after midnight and conducted a traffic stop. During

the stop, the officer smelled alcohol on Malone's breath and noticed he was slurring his

words. The officer also observed that Malone had watery and glassy eyes. Upon

further inquiry, Malone admitted that he had been out drinking but said he only had one

beer and one shot. The officer administered field sobriety tests. The officer said that

Malone performed poorly and became increasingly uncooperative as the tests

progressed. At this point, the officer arrested Malone for DUI.

              The State introduced a dash camera video and audio recording of the

encounter that included everything from Malone's driving pattern to his performance on

the field sobriety tests. Defense counsel argued that Malone's actions during the stop

did not provide probable cause that he was intoxicated to the level of being impaired.

Defense counsel asserted that Malone's speech was clear in the video and suggested

that his poor performance on the field sobriety tests was the result of a breakdown in

communication due to Malone's learning disabilities.

               The county court agreed that the video contained no indication that

Malone had slurred speech or was impaired. The court acknowledged that Malone was

being "difficult" during the field sobriety testing but attributed that to Malone's learning

disability. Thus, the court ruled that the officer did not have probable cause to arrest

Malone and granted the motion to suppress.




                                             -2-
              On appeal, the circuit court accepted the county court's factual findings

with regard to Malone's demeanor and behavior on the video. However, the court

reversed based on its conclusion that the county court erred by rejecting or failing to

consider testimony as to Malone's impairment that was not discernible from the video.

The circuit court determined that the arresting officer's testimony that he smelled alcohol

on Malone's breath, that Malone's eyes were watery and glassy, that Malone admitted

to drinking, and that Malone performed poorly on the field sobriety tests provided

probable cause to arrest Malone for DUI.

              Malone now seeks certiorari review of the circuit court's decision. Our

scope of review is limited to determining whether the circuit court afforded Malone

procedural due process and applied the correct law. Duke v. State, 82 So. 3d 1155,

1157 (Fla. 2d DCA 2012) (citing Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530

(Fla. 1995)). At issue herein is only the latter question: whether the circuit court applied

the correct law in reversing the county court's order.

              As for the circuit court's standard of review of the county court's decision,

the circuit court was required to afford the suppression order a presumption of

correctness. Id. at 1158. The circuit court was entitled to conduct a de novo review of

the county court's application of the law to its factual findings. Id. at 1157. However,

the circuit court was also required to defer to the county court's factual findings as long

as they were supported by competent, substantial evidence. Id. at 1157-58. The circuit

court was not permitted to "reweigh the evidence and choose to believe a state witness

which the county court chose not to believe." Id. at 1158 (quoting Sunby v. State, 845




                                            -3-
So. 2d 1006, 1007 (Fla. 5th DCA 2003)). The weighing of the evidence and the

determination of credibility "are exclusively within the province of the county court." Id.

              We conclude that the circuit court applied an erroneous standard of

review. The circuit court went beyond determining whether the video on which the

county court relied presented competent, substantial evidence to support the county

court's conclusions. Despite acknowledging that the county court rejected at least part

of the officer's testimony, the circuit court concluded that the officer's testimony

regarding Malone's demeanor and field sobriety test results established probable cause

notwithstanding what was readily observable on the video. Thus, the circuit court

improperly reweighed the evidence and chose to rely on the officer's testimony despite

the fact that the county court declined to do so. The county court was free to rely on its

credibility determination to ignore or place less emphasis on the officer's testimony and

was not required to give equal weight to the officer's testimony and the video. See

Sunby, 845 So. 2d at 1007.

              By reweighing the evidence and conducting its own analysis of whether

the totality of the circumstances supported a finding of probable cause, the circuit court

failed to apply the correct law. See Weiss v. State, 965 So. 2d 842, 843 (Fla. 4th DCA

2007) ("When the circuit court found substantial competent evidence to support the

stop, it applied the incorrect standard of review. . . ."). Accordingly, we grant the petition

for certiorari and quash the circuit court's decision.

              Petition granted; order quashed.



LUCAS and BADALAMENTI, JJ., Concur.




                                             -4-
