IN THE INTEREST OF: S. C., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court dismissed an appeal from a nolo contendere conviction because the defendant failed to reserve the right to appeal and did not move to withdraw the plea in the trial court. The court modified the disposition order to correct a clerical error by excluding a case that was nolle prossed by the State.
A defendant may not appeal from a judgment of conviction entered upon a plea of nolo contendere without a reservation of the right to appeal. Issues concerning the voluntary or intelligent character of a plea must first be presented to the trial court through a motion to withdraw the plea. The same principle applies to pleas of nolo contendere as to guilty pleas.
[1] A defendant may not appeal from a judgment of conviction entered upon a plea of nolo contendere without a reservation of the right to appeal from a prior specifically ide…
[2] Issues concerning the voluntary or intelligent character of a plea should first be presented to the trial court via a motion to withdraw the plea.
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Join FLexlaw to unlock all legal intelligence“A defendant may not appeal from a judgment of conviction entered upon a plea of nolo contendere without a reservation of the right to appeal from a prior specifically identified order of the trial court.”
Establishes the jurisdictional requirement for appeals from nolo contendere pleas
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Join FLexlaw to unlock all legal intelligenceThe defendant pleaded nolo contendere to eleven counts of a twelve-count information, with one count nolle prossed by the State. The trial court enter…
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ORFINGER, Judge.
The record reflects that appellant pleaded nolo contendere to eleven counts of a twelve-count information. One of the counts was nolle prossed by the State. There was no reservation of a right to appeal any ruling by the trial court. The order of disposition adjudged appellant guilty on all twelve counts.
Both appellant and appellee agree that the trial court made a clerical mistake in including case number JU 78-3787 in the order of disposition. This was the case nolle prossed by the State, so the order of disposition is modified by excluding therefrom case no. JU 78-3787.
Appellant next contends that the record does not clearly show that the trial court adequately inquired of appellant regarding his understanding of the constitutional rights he was waiving by the entry of the plea.
The appeal must be dismissed because we are without jurisdiction. A defendant may not appeal from a judgment of conviction entered upon a plea of nolo contendere without a reservation of the right to appeal from a prior specifically identified order of the trial court. Rule 9.140(b)(1), Fla.R. App.P.1
There was no reservation of the right to appeal, and no motion to withdraw the plea was made to the trial court. In Robinson v. State, 373 So. 2d 898 (Fla.1979), the Supreme Court held that although matters which occur contemporaneously with a plea of guilty or nolo contendere may be the subject of a direct appeal,
[i]f the record raises issues concerning the voluntary or intelligent character of the plea, that issue should first be presented to the trial court in accordance with the law and standards pertaining to a motion to withdraw the plea.
Id. at 902.
One of our sister courts has expounded on that principle in Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979), and has held that a motion to withdraw a plea of guilty is a prerequisite to a direct appeal challenging the voluntariness of the plea. We concur, and hold that the same principle applies to a plea of nolo contendere entered without a reservation of the right to appeal.
The appeal is dismissed insofar as it questions the voluntariness of the plea without prejudice to appellant to seek appropriate collateral relief. As modified, the order of disposition is otherwise affirmed.
AFFIRMED as modified.
DAUKSCH, C. J., and SHARP, J., concur. . See also 3.172(c)(iv), Fla.R.Crim.P.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Peak v. State, 399 So. 2d 1043 (Fla. 5th DCA 1981)…for appeal.1 Any contention that the plea was not of a voluntary or intelligent character should first be presented to the trial court in a motion to withdraw the plea. Robinson v. State, 373 So. 2d 898 (Fla.1979); In the Interest of S.C. v. State, 388 So. 2d 643 (Fla. 5th DCA 1980). Appellant also contends on appeal that the split sentence is improper under the principles of Villery v. Florida Parole & Probation Commission, 396 So. 2d 1107 (1981) [1981 FLW 313], However valid his contention might be had th…
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In the Interest of L.L. v. State, 429 So. 2d 347 (Fla. 5th DCA 1983)…is a prerequisite to a direct appeal challenging the voluntariness of the plea. This court has applied the principle of the criminal statute and appellate rule and of Robinson and Counts to juvenile proceedings. See In the interest of S.C. v. State, 388 So. 2d 643 (Fla. 5th DCA 1980). Therefore we dismiss this appeal. A dismissal of an appeal because the matter sought to be reviewed is required to be, but has not been, first presented to the .trial court is but the application of a rule of law relating to app…
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Tippett v. State, 429 So. 2d 795 (Fla. 5th DCA 1983)…PER CURIAM. Appeal dismissed. See Robinson v. State, 373 So. 2d 898 (Fla.1979); In the Interest of L.L. v. State, 429 So. 2d 347 (Fla. 5th DCA 1983); In the Interest of S.C. v. State, 388 So. 2d 643 (Fla. 5th DCA 1980); Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). ORFINGER, C.J., and DAUKSCH and COBB, JJ., concur.…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979)