D.J.P., Jr. v. State
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IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
July 8, 2011
D.J.P., JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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Case No. 2D10-2439
Upon consideration of the Appellant's motions for rehearing and rehearing
en banc filed May 11, 2011, it is
ORDERED that the Appellant's motion for rehearing is granted to the
extent that this court's opinion dated May 6, 2011, is withdrawn, and the attached
opinion is issued in its place. The opinion has been amended to add a concurrence.
The motion for rehearing en banc is denied. No further motions for rehearing will be
entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
JAMES R. BIRKHOLD, CLERK
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
D.J.P., JR.,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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Case No. 2D10-2439
Opinion filed July 8, 2011.
Appeal from the Circuit Court for
Hillsborough County; Christopher C.
Sabella, Judge.
James Marion Moorman, Public Defender,
and Karen M. Kinney, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Danilo Cruz-Carino,
Assistant Attorney General, Tampa, for
Appellee.
WHATLEY, Judge.
D.J.P. appeals an order adjudicating him to be delinquent after he
admitted committing the offenses of burglary of an unoccupied dwelling and grand theft
of a firearm. Although D.J.P. attempted to reserve his right to appeal the denial of a
motion to suppress his confession, we conclude that the motion was not dispositive and
affirm. At the hearing on the motion to suppress, the trial court and the State noted that
there was no stipulation that the motion was dispositive. The trial court stated, "In fact it
was the State that refused to stipulate because they believe they could go forward even
[if the motion had been granted]." Thereafter at the change of plea hearing, the State
asserted that there were other witnesses who could identify D.J.P.
In M.N. v. State, 16 So. 3d 280, 281 (Fla. 2d DCA 2009), the appellant
entered a plea to the charges contingent on his ability to appeal the denial of a pretrial
motion, the trial court accepted the plea and noted the appellant's reservation of his
right to appeal, but the trial court failed to expressly find that the motion was dispositive.
This court affirmed in M.N., holding that the appellant's motion was not dispositive
because the State could go forward at trial even if the appellant had prevailed on the
appeal of the trial court's order. Id. at 281-82; see also Weber v. State, 492 So. 2d
1166, 1167 (Fla. 4th DCA 1986) (refusing to infer stipulation where there was no
language in the transcript that could be construed to be a stipulation and the State's
factual bases for the charge indicated that the confession was not dispositive).
Accordingly, we affirm.
VILLANTI, J., Concurs specially with opinion.
SILBERMAN, C.J., Concurs specially with opinion.
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VILLANTI, Judge, Specially concurring.
I fully concur in the majority opinion but write to note that D.J.P.'s failure to
obtain a definitive ruling on the dispositiveness of his motion from the trial court
precludes review of the denial of that motion in this appeal. Florida Rule of Appellate
Procedure 9.140(b)(2) provides in pertinent part:
A. Pleas. A defendant may not appeal from a guilty or
nolo contendere plea except as follows:
(i) . . . . A defendant who pleads guilty or nolo
contendere may expressly reserve the right to appeal a
prior dispositive order of the lower tribunal, identifying
with particularity the point of law being reserved.
(Emphasis added.) Similarly, section 924.051(4), Florida Statutes (2007), likewise
provides: "If a defendant pleads nolo contendere without expressly reserving the right
to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly
reserving the right to appeal a legally dispositive issue, the defendant may not appeal
the judgment or sentence." (Emphasis added.) This rule and statute do not constitute a
jurisdictional bar to appellate review, but they do expressly limit the issues that can be
addressed on appeal following a guilty plea. Leonard v. State, 760 So. 2d 114, 118
(Fla. 2000).
The record in this case does reflect some initial uncertainty in the trial
court's intent concerning a ruling on dispositiveness. However, at the change of plea
hearing, the trial court clearly found, based on the State's representations as to other
available evidence, that the denial of the motion to suppress was not dispositive of the
charges against D.J.P. Because the only issue raised in this appeal hinges on a finding
that the denial of D.J.P.'s motion to suppress was dispositive and because that denial
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was not expressly found to be dispositive below, we must summarily affirm. Id. at 119
(explaining that a district court should affirm summarily when it finds that an appeal from
a guilty or nolo contendere plea does not present an issue preserved in accordance with
section 924.051(4)).
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SILBERMAN, Chief Judge, Specially concurring.
I fully concur in the result reached in the majority opinion. I write to note
that our decision does not preclude D.J.P. from filing a timely petition for writ of habeas
corpus seeking to withdraw his plea as involuntary. See M.N. v. State, 16 So. 3d 280,
282 (Fla. 2d DCA 2009).
Although the trial court's ruling on D.J.P.'s motion to suppress was not
dispositive, it is clear from the record that D.J.P. entered his negotiated, no contest plea
to a reduced charge with the understanding that he could obtain appellate review of the
order denying his motion to suppress. The plea form signed by D.J.P., his guardian, his
attorney, and the trial court states in two places that D.J.P. entered his plea while
reserving for appellate review the trial court's denial of his motion to suppress. Further,
the transcript of the change of plea hearing reflects extensive discussion by D.J.P., his
attorney, and the trial court that in entering his plea, D.J.P. would be able to obtain
appellate review of the order denying his motion to suppress. The trial court elaborated
as follows:
Well, I can't give you legal advice on how to appeal. I just
can't give you legal advice, but your time to file an appeal,
which you absolutely have the right to do. You've reserved
that right. I'm granting you that right. . . .
....
I have no doubt that you will be fully advised on how to
pursue your appellate rights that you've reserved.
....
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I fully expect you to appeal. I'm not offended by that and if
the appellate court reverses me then I have to follow their -their infinite wisdom.
Because D.J.P. could not get the benefit of his bargain regarding appellate
review of the suppression order, his plea appears to be involuntary. Thus, D.J.P. is
entitled to seek to withdraw his plea. Of course, if he is successful in doing so, he will
likely lose the other benefits obtained through his negotiated plea.
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