giving Appellant ten days to file modification motion, following the filing of the record and of this Court’s opinion with the trial court
How later courts described this case
- giving Appellant ten days to file modification motion, following the filing of the record and of this Court’s opinion with the trial court
Written by the judges who cited it.
The opinion
BROSKY, Judge,
dissenting:
The majority holds that the fact that the de novo court is bound by the decision of the suppression court in the Municipal Court does not necessitate us finding that the system involved herein is different than that found in Colten v. Kentucky, 407 U.S. 104 , 92 S.Ct. 1953 , 32 L.Ed.2d 584 (1972). I do not agree. I would hold that the suppressibility of presumably critical evidence has been litigated by a different court than that reaching the decision upon which the appellant herein was sentenced and as such that the de novo court has not, in its fullest extent, engaged in a de novo determination. It is not uninfluenced by the decision of the municipal court. Thus, the two-tier system herein is distinguishable from that found in Colten . Accordingly, I would hold that the de novo court is obliged to sentence DeCaro to no more severe a sentence than that she received in the Municipal Court unless it finds there is “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original (Municipal Court) sentencing proceeding.” North Carolina v. Pearce, 395 U.S. 711, 726 , 89 S.Ct. 2072, 2081 , 23 L.Ed.2d 656, 670 (1969). I would remand to the trial court for proceedings consistent with this opinion.