Defendant arrested 30-60′ from car was not a “recent occupant” under Thornton

Defendant was arrested 30-60′ away from the car he had been driving for no DL, and he did not qualify as a sufficiently recent occupant under Thornton to justify a search incident of the car. A.T.P. v. State, 973 So. 2d 650 (Fla. 2DCA 2008):

We conclude that the facts of the present case as outlined above make it distinguishable from Thornton. Here, A.T.P. was not in close proximity to his vehicle, had not recently exited the vehicle, and did not have the keys to the locked vehicle in his possession. There was no evidence that the deputy was concerned for his safety or that there was a risk that A.T.P. might destroy any evidence that might be contained in the vehicle. From our de novo review we conclude that the trial court erred when it denied the motion to suppress based on the legal conclusion that the case was controlled by Thornton. Accordingly, we reverse the withhold of adjudication for possession of cocaine and remand for discharge for this offense.

Defendant’s ineffective assistance claim justified a hearing. He alleged that defense counsel failed to pursue a suppression motion but pled guilty instead. His claim was not waived by a guilty plea, and it could not be said he would conclusively have lost the motion. Robinson v. State, 972 So. 2d 1115, 33 Fla. L. Weekly D 398 (Fla. 5DCA 2008).*