State v. Mitchell , 31 Fla. Supp. 2d 119 ( 1988 )

OPINION OF THE COURT

M. DANIEL FUTCH, JR., Circuit Judge.

Appellant, the State of Florida, appeals an Order granting a Sworn Motion to Dismiss. This Court reverses.

Appellee, David Armstrong Mitchell, was charged by Information with driving, or being in actual physical control of a vehicle, while he was under the influence of alcohol to the extent that his normal faculties were impaired.

Appellee’s sworn motion to dismiss contended that since he was sleeping in his vehicle, although in the driver’s seat with his left hand on the steering wheel and the keys in the ignition, he was not in actual physical control of his vehicle. Appellant argued that these facts, in light of existing Florida law, were in fact sufficient to show actual physical control of the vehicle. The trial court granted Appellee’s sworn motion to dismiss, relying on out of state cases, finding that the Defendant was physically unable to start his car since he was asleep.

This Court finds the trial court’s ruling to be erroneous. The law in Florida, as expressed by the Second District Court of Appeal in Griffin v State, 457 So.2d 1070 (Fla. 2d DCA 1984), under facts as they exist in the case sub judice, prohibit Appellant from placing himself behind the wheel of a vehicle since he could have at any time started the vehicle and driven off. “He therefore had ‘actual physical control’ of the vehicle within the meaning of the statute.” Id. at 1072.

Accordingly, it is hereby,

ORDERED AND ADJUDGED that the trial court’s Order Granting Appellee’s Sworn Motion to Dismiss be, and the same hereby is, REVERSED and REMANDED with directions for further proceedings consistent herewith.

DONE AND ORDERED in Chambers at the Broward County Courthouse, 201 Southeast Sixth Street, Fort Lauderdale, Broward County, Florida 33301, this 11th day of October, 1988.