“It is not too late, Judge”

                                    Shermaine Jermon Lowe v. State,

                       2023 Fla.      App LEXIS 1182 *; 2023 WL 2193805

                           Case No. 4D22-101 (Filed February 22, 2023)

In our case of the week, Shermaine Lowe was found guilty by a jury of violating Fla. Stat. § 790.23(1)(a), which makes it unlawful for felons to have a firearm in their care, custody, possession, or control. The case was tried by St. Lucie County Circuit Court Judge Robert E. Belanger, 19th Judicial Circuit. Lowe appealed his conviction and sentence.

Lowe argued that Judge Belanger erred when he ruled that all of his objections to inadmissible evidence were waived, including during the jury trial, because his motion in limine was ostensibly untimely.  The Fourth District agreed with Lowe and reversed his conviction and sentence.

Lowe filed a motion in limine seeking to exclude references to the gun having been stolen as “irrelevant and prejudicial,” and statements that a hotel clerk made to the arresting officer before Lowe was arrested as inadmissible hearsay. The court treated the motion in limine as an untimely motion to suppress and denied it without addressing any of the arguments raised or the merits of Lowe’s evidentiary objections.

When the jury trial started, Lowe renewed his motion, but Judge Belanger again refused to address the merits, ruling that Lowe waived his evidentiary objections.  The Fourth District found that the trial court erred by failing to consider Lowe’s motion in limine or the evidentiary claims when raised at trial.                                                  See Lowe, 2023 Fla. App. LEXIS 1182, *2 (“Even if the motion were characterized as a motion to suppress, the court could consider it. Florida Rule of Criminal Procedure 3.190(g)(4) generally requires a motion to suppress to be filed before trial, but the rule allows the court to consider the motion at trial.”) Moreover, a failure to file a motion to suppress prior to trial does not result in a waiver of the right to file a motion at trial. Id. at *2 (citing Savoie v. State, 422 So. 2d 308, 310 (Fla. 1982)).

The Fourth District reversed and remanded for a new trial after concluding that the judge had committed error when he “categorically refused” to consider Lowe’s motionin limine, and later when he refused to consider defense objections to specific trial evidence.