Dunk v. State ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MATTHEW MILTON DUNK, )
)
Appellant, )
)
v. ) Case No. 2D15-4546
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed December 14, 2016.
Appeal from the Circuit Court for
Hillsborough County; Emmett Lamar
Battles, Judge.
Howard L. Dimmig, II, Public Defender, and
William L. Sharwell, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, for Appellee.
LaROSE, Judge.
Matthew Dunk, via Anders1 counsel, appeals his conviction and sentence
of twenty-four months' probation after a negotiated plea to possession of ten morphine
pills without a prescription and possession of drug paraphernalia. See §§ 893.13(6)(a),
1See Anders v. California, 386 U.S. 738 (1967); In re Anders Briefs, 581
So. 2d 149 (Fla. 1991).
893.147(1), Fla. Stat. (2014). He reserved for appeal the denial of his dispositive
motion to suppress evidence. After examining the record before us, we find no issue
upon which we can grant relief to Mr. Dunk. Therefore, we affirm.
At the hearing on the motion to suppress, Mr. Dunk testified that he and
Susan Schulz were driving back from Walmart when his car started overheating. He
stopped at a gas station at Bearss Avenue and 22nd Street in Tampa. While waiting for
the engine to cool down, Mr. Dunk and Ms. Schulz went for a walk around the area. As
they were walking back toward the car, they saw Tampa Police Officers Vasconi and
Dennie exit their patrol car and walk toward them. Officer Dennie asked them to stop.
He grabbed a bag Mr. Dunk was carrying, said, "Let me see this," and immediately
started looking through it without Mr. Dunk's consent. Ms. Schulz testified, too, and
corroborated Mr. Dunk's testimony.
Officer Vasconi testified that she saw Mr. Dunk walking in an area of high
drug activity. She exited the patrol car and made consensual contact with Mr. Dunk.
Officer Vasconi did not see Mr. Dunk committing any crime. She asked him if he had
anything illegal on his person. When Mr. Dunk said no, she asked if she and Officer
Dennie could search him. Officer Vasconi claimed that both Mr. Dunk and Ms. Schulz
consented to be searched. When he testified at the hearing, Officer Dennie echoed
Officer Vasconi's testimony.
After hearing the testimony, the trial court denied the motion to suppress,
finding the officers' testimony more credible than that presented by Mr. Dunk and Ms.
Schulz. "[T]his Court will not substitute its judgment for that of the trial court on
questions of fact, likewise of the credibility of the witnesses as well as the weight to be
given to the evidence by the trial court." Griffin v. State, 114 So. 3d 890, 905 (Fla.
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2013) (quoting Lowe v. State, 2 So. 3d 21, 30 (Fla. 2008)). We cannot say that the trial
court abused its discretion. Therefore, we affirm.
Affirmed.
SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.
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