Pena v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2005
EFRAIN PEÑA
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D04-2991
[ October 12, 2005 ]
ON MOTION FOR REHEARING
PER CURIAM.
We deny the motion for rehearing, withdraw our earlier opinion, and
substitute the following.
Efrain Peña challenges the trial court’s refusal to allow him to enter
St. Lucie County’s version of the pretrial drug intervention program
(“Drug Court”). Peña, a non-resident alien, was arrested for possession
of cocaine and eventually filed a motion to participate in Drug Court.
The State argued against participation on the ground that participation
may not be appropriate based on Peña’s status as an illegal alien. The
trial court denied the motion, Peña withdrew his not guilty plea, and
Peña entered a no contest plea reserving the right to appeal the denial of
his motion to participate in Drug Court. The trial court then sentenced
Peña to probation.
Peña filed this appeal, believing this court had jurisdiction pursuant
to Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i). That rule allows a
defendant to appeal, after a no contest plea, “a prior dispositive order of
the lower tribunal.” Fla. R. App. P. 9.140(b)(2)(A)(i). In this context, an
“issue is legally dispositive ‘only if, regardless of whether the appellate
court affirms or reverses the lower court’s decision, there will be no trial
of the case.’” Levine v. State , 788 So. 2d 379, 380 (Fla. 4th DCA 2001)
(quoting Zambuto v. State , 731 So. 2d 46, 46 (Fla. 4th DCA 1999)). An
exception to this rule applies when there is “record evidence of a
stipulation between the parties that the issue was dispositive.” Weber v.
State, 492 So. 2d 1166, 1167 (Fla. 4th DCA 1986) (citing Finney v. State,
420 So. 2d 639 (Fla. 3d DCA 1982)).
We conclude the denial of the motion to participate in Drug Court is
not a legally dispositive order to the extent necessary to confer
jurisdiction in this court. Even if this court reversed and remanded for
the court to grant Peña’s entry into the program, a trial may still yet be
necessary if, for some reason, Peña opts out of the program and re-enters
the regular criminal justice system. See generally Mullin v. Jenne, 890
So. 2d 543 (Fla. 4th DCA 2005). There is no great expectation or
guarantee that reversal would absolutely foreclose the possibility of a
future trial on this specific charge.
Further, the exception to the rule, based on mutual stipulation, is
not appropriate in this situation. It is well-settled that subject-matter
jurisdiction cannot be conferred by agreement of the parties. See City of
West Palm Beach v. Palm Beach County Police Benev. Ass’n, 387 So. 2d
533 (Fla. 4th DCA 1980); Decaprio v. State , 352 So. 2d 78 (Fla. 4th DCA
1977). In this context, stipulating to the dispositive nature of an order is
applicable where the trial court and the prosecutor acknowledge that the
pursuit of criminal charges would be abandoned due to the suppression
of evidence. See Lamour v. State , 899 So. 2d 1256 (Fla. 4th DCA 2005)
(noting the motion to suppress cocaine was dispositive where the charge
was simple possession of that very same cocaine); Levine, 788 So. 2d at
380 (suggesting the denial of a motion to discharge habitual DWLS might
have been dispositive if the State had agreed that it had no way of
presenting sufficient evidence of predicate offenses without the tainted
case).
The courts are not unanimous in dismissing an appeal based upon a
plea after the trial court denies admission to a pretrial intervention
program. In Gardner v. State , 709 So. 2d 612 (Fla. 1st DCA 1998), the
court considered the issue after the defendant pled nolo contendere to
possession of drugs and was sentenced to county jail. However, the
court did not directly consider the jurisdictional issue even though it
ruled on the merits of the claim.
There are other methods to raise this issue. We have reviewed orders
denying entry to the drug intervention program as appropriately raised
by petition for certiorari. See Hewlett v. State , 661 So. 2d 112 (Fla. 4th
DCA 1995) (review by certiorari appropriate from order of chief judge
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transferring case out of drug division and into felony division).
Defendant did not file such a petition in this case.
Because we have concluded that the order on appeal was not
dispositive and the exception to the rule does not apply, we have no
jurisdiction to reach the merits of this case.
Dismissed.
GUNTHER , WARNER and HAZOURI , JJ., concur.
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Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie
County; Burton C. Conner, Judge; L.T. Case No.
562003CF003550A.
V.J. (Jimmy) Benincasa, Vero Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E.
L'Italien, Assistant Attorney General, West Palm Beach, for appellee.
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