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The Florida Bar

Pre-Trial Motions Criminal Drug Law Question and Answer

Criminal Lawyers Obligation to File Timely


I am scheduled to go to trial next week on a drug case in Fort Lauderdale and I just recently decided to file a motion to suppress evidence that I believe was illegally obtained. As the case is somewhat old, I am considering that the court hear the motion prior to trial as it has been made very clear that there will be no more continuances. Should the court refuse to hear the motion, will I have the right to appeal. And more importantly, will that appeal be successful? It seems that under Gadson, failure to hear the motion will result in a reversal. Any thoughts?



You really need to be careful here, especially if the court had ordered all parties to present any motions within a certain period of time before trial. Furthermore, from the standpoint of judicial economy, you have already indicated that you are ready for trial and in doing so, have conveyed that there are no further matters to be addressed to the court. Absent a very good reason as to why this motion is being filed so late in the game, the court absolutely has discretion to deny a hearing on your motion to suppress. Hopefully, facts just became known to you that gave rise to the filing of such a motion. If that’s the case, “good cause” should at least ensure that you will have your hearing before trial and it is quite possible that the court may even reset the trial for a later date. Absent a justifiable excuse however, the court could exercise its discretion to deny hearing on your motion under Powell v. State, 717 So. 2d 1050. That case discusses pretrial orders and the unnecessary delay of criminal trials. There is also some discussion in that case about denying the state an opportunity to appeal rulings rendered just prior to the trial’s commencing. Let the prosecutor and the court know of your desire to have this motion heard immediately, rather than springing it on the day of the trial.

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