       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        MACKENDY CLEDENORD,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-1566

                             [ May 23, 2018 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John S. Kastrenakes, Judge; L.T. Case No.
502013CF011521A.

  Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant
Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel,
Fourth District, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    Mackendy Cledenord appeals his convictions and sentences for lewd or
lascivious molestation, sexual battery on a person younger than 12, and
lewd or lascivious conduct. Appellant argues that the trial court abused
its discretion in denying his cause challenges to two prospective jurors.
We disagree and affirm without comment on this issue. Appellant also
argues that the trial court abused its discretion in summarily denying his
pre-trial motion for reconsideration of the trial court’s suppression ruling.
We affirm on this issue as well but write to explain that, although the trial
court applied an incorrect legal standard in ruling on the motion for
reconsideration, we find that the error was harmless.

   The following facts are relevant to this opinion. Soon after appellant’s
arrest, he gave a videotaped statement to police in which he admitted
touching the victim’s thighs and chest but denied touching her vagina.
Appellant moved to suppress his statement.
   At the suppression hearing, evidence showed that officers were
dispatched to the victim’s home shortly after 3:00 a.m. on the date of the
incident. The scene was chaotic and emotional, with people talking loudly
back and forth.

   The officers made contact with the victim’s aunt, who did not testify at
the suppression hearing. The victim’s aunt told the officers that she had
thrown a party at her home earlier that evening. After she went to sleep
that night, she was awakened to the sound of the victim screaming. When
she went to the living room to investigate, she saw a man get up from the
area next to the victim, go out to the patio, and take off running. The
victim told her aunt and the police that the man had inserted his finger
into her vagina.

   Witnesses at the scene described the man as a twenty-something black
male who had dreadlocks and was wearing a red shirt. The victim’s aunt
told the police that the man had been at the party earlier that evening.
According to the officers’ testimony, the victim’s aunt and other witnesses
said that the man lived next door.

    The officers gave conflicting testimony about whether the victim’s aunt
knew the man’s name. Sergeant Scott testified that the victim’s aunt did
not know the man’s name. By contrast, Officer Laurent testified that the
victim’s aunt identified appellant by name as the man she observed on the
patio. Officer Laurent repeatedly testified that the victim’s aunt referred
to the man as “Mackendy.”

    The police went next door and knocked on the door. A resident, Mr.
Valliere, answered the door and gave the police permission to search for
the suspect. Officers entered the home and saw appellant sleeping on the
couch. Appellant matched the description of the suspect, as he was black,
appeared to be in his mid-twenties, was wearing a red shirt, and had a
dreadlock hairstyle. Officers woke appellant up and had him identify
himself. Officers handcuffed appellant and took him outside for a show-
up identification. The victim’s aunt identified appellant as the person she
saw inside her house. Appellant was then placed in a patrol car and taken
to the police station.

   Relevant to this appeal, defense counsel argued that appellant’s
statement was the product of an illegal arrest inside his residence without
probable cause. Additionally, relying on the testimony of a resident of
appellant’s home, defense counsel argued that the police did not have
consent to enter the home.


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    The trial court denied the motion to suppress, finding that appellant’s
arrest was lawful. Specifically, the trial court found that: (1) there were
exigent circumstances justifying the entry into appellant’s home; (2) Mr.
Valliere, who had both actual and apparent authority over the common
areas of appellant’s home, freely and voluntarily gave consent for the
officers to enter the home; and (3) the officers had probable cause to detain
and arrest appellant “based on the critical one fact, which is this, that the
person, that the culprit lives next door, his name is Mackendy, testified to
by Laurent and Laurent identifies the defendant on the couch as the same
person.”

   In finding probable cause to arrest appellant, the trial court also
emphasized that appellant’s age, red shirt, race, and dreads matched the
description of the suspect. As a “backup finding,” the trial court found
that even if the officers did not have probable cause to arrest appellant
when they found him in the house, the police acted reasonably in detaining
appellant for the purpose of bringing him outside the home for an
immediate show-up identification. The trial court concluded that this
reasonable detention was elevated into an arrest supported by probable
cause when the victim’s aunt “immediately identified [appellant] as the
person who committed the crime.”

   About ten months before trial, appellant filed a motion for
reconsideration 1 of the trial court’s suppression ruling, arguing that newly
discovered evidence required the trial court to conduct a new suppression
hearing in the interests of justice. Appellant asserted that, after the
suppression hearing, the victim’s aunt gave deposition testimony directly
contradicting the police testimony upon which the trial court’s factual and
legal rulings relied. Attached to appellant’s motion was the aunt’s
deposition, wherein she testified in relevant part:

       The man she saw on the patio was at the party earlier that
      night.

       She told the police what the man looked like.

       She did not know the man’s name and did not tell police that
      the man’s name was Mackendy.

       She did not know where the man lived and did not tell the
      police that he lived next door.

1The motion was incorrectly designated below as a “motion for rehearing,” but in
substance was a motion for reconsideration.

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       Her brother might have told the police that the man lived
      next door, but she did not remember anybody telling the police
      that the man lived next door.

   The trial court denied appellant’s motion for reconsideration in open
court. Applying the “newly discovered evidence” standard used in post-
conviction cases, the trial court found that appellant was required to make
a showing that the evidence could not have been uncovered through the
exercise of due diligence, and noted that there was no allegation in the
motion that the witness was unavailable or unknown to appellant.
Defense counsel responded that the witness had been in Haiti and that he
did not have an address for her there. However, the trial court was
unpersuaded by defense counsel’s argument and entered a written order
denying the motion for reconsideration.

   At trial, appellant’s statement was introduced into evidence. The jury
found him guilty of all charges.

    On appeal, appellant argues that the trial court abused its discretion
in summarily denying his pre-trial request for the trial court to reconsider
its ruling on the motion to suppress, where defense counsel learned of new
facts that brought the suppression ruling into question.

   A trial court has the inherent power “to reconsider, while the court has
jurisdiction of the case and upon appropriate motion or objection by either
counsel, a ruling previously made on a motion to suppress.” Savoie v.
State, 422 So. 2d 308, 312 (Fla. 1982). A trial court’s decision whether to
reconsider a motion to suppress is reviewed for an abuse of discretion.
Shermer v. State, 16 So. 3d 261, 265 (Fla. 4th DCA 2009).

    In the context of post-conviction cases, a defendant seeking relief on
the basis of newly discovered evidence must show: (1) the evidence must
not have been known by the trial court, the party, or counsel at the time
of trial, and it must appear that the defense could not have known of it by
the use of diligence; and (2) the evidence must be of such nature that it
would probably produce an acquittal on retrial. Jones v. State, 709 So. 2d
512, 521 (Fla. 1998).

   In the context of motions to suppress raised for the first time at trial,
however, a trial court should apply a balancing test in deciding whether to
exercise its discretionary authority under Florida Rule of Criminal
Procedure 3.190(h) to entertain a motion to suppress during trial. See
Savoie, 422 So. 2d at 311. In deciding whether to consider “a motion to

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suppress made during the course of a trial, the judge must balance the
rights of the defendant to due process and effective assistance of counsel
with the rights of the state to have an opportunity to appeal an adverse
ruling on the motion to suppress.” Id. at 312.

   Here, we find that the trial court should not have applied the post-
conviction standard for newly discovered evidence in ruling on appellant’s
request for reconsideration of the trial court’s suppression ruling. The
post-conviction standard is too restrictive in the pre-trial context, as it is
inconsistent with a trial court’s broad discretion to reconsider a prior
interlocutory ruling on a motion to suppress. The due diligence prong of
the post-conviction standard serves the policy of finality, but that policy
has little importance before trial. Where reconsideration of a ruling on a
motion to suppress in advance of trial would not deprive the state of an
opportunity to appeal an adverse ruling, the rights of a defendant to due
process and effective assistance of counsel should outweigh any need for
finality with respect to an interlocutory suppression ruling. Cf. Savoie,
422 So. 2d at 312.

   Accordingly, in deciding whether to grant a pre-trial request to
reconsider a prior ruling on a motion to suppress on the basis of newly
discovered evidence, a trial court should evaluate the nature of the new
evidence and whether it would have impacted the prior suppression ruling.
A party’s lack of due diligence in discovering the new evidence is not a
sufficient basis for denying a pre-trial motion for reconsideration of a prior
ruling on a motion to suppress.

   Nonetheless, although we find that the trial court incorrectly applied
the post-conviction standard for newly discovered evidence in ruling on
appellant’s request for reconsideration of the suppression order, we find
that any error was harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135
(Fla. 1986).

    In this case, there is no reasonable possibility that the newly discovered
evidence would have affected the trial court’s suppression ruling. The
victim’s aunt testified in her deposition that she did not know the name of
the man on the patio, did not tell the police the man’s name, and did not
tell the police that the man lived next door. Although this testimony
contradicted the officers’ testimony in certain respects, it would not have
affected the outcome of the suppression hearing.

   The evidence at the suppression hearing showed that there were other
witnesses at the scene, besides the victim’s aunt, who said that the
suspect lived next door. Indeed, it is obvious that someone told the police

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where the suspect lived, even if the officers were mistaken as to whether
the victim’s aunt gave them this information. Moreover, even if the victim’s
aunt did not personally tell the police appellant’s name or that he lived
next door, it is undisputed that she gave police a description of the
suspect. Additionally, the victim’s aunt’s deposition does not call into
question the trial court’s finding that the police had consent to enter the
home next door.

    Although the trial court did rely on Officer Laurent’s testimony that the
victim’s aunt told the police the suspect’s name, this fact was not crucial
to the probable cause determination. When the police found appellant on
the couch and saw that he matched the detailed description of the suspect,
the police had reasonable suspicion to briefly detain appellant to
determine whether the victim’s aunt could identify him. The aunt’s
positive identification of appellant then provided the police with probable
cause for his formal arrest. The officers would have had probable cause
to arrest appellant regardless of whether the aunt told the police
appellant’s name or where he lived.

   In sum, although the trial court applied an incorrect legal standard in
ruling on the motion for reconsideration, we find that the error was
harmless. Even under the standard that we announce today, appellant
would not have been entitled to reconsideration of the suppression ruling.

   Affirmed.

WARNER and GROSS, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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