BILLIE EDWARD SNELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1980-10-15
No. 78-2356/T4-276
DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.
388 So. 2d 1353 Florida District Court of Appeal, Fifth District (1980) Positive Treatment
Cited by 11 cases

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Holding

The court held that a defendant who entered an Ashby nolo contendere plea before the decision in Brown v. State should be allowed to withdraw that plea.

Facts & Procedural History

Appellant pled nolo contendere to robbery with a weapon, reserving the right to appeal the denial of his motion to suppress a confession. He entered t…

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Topics
Motion To Suppress Confession

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Opinion of the Court
SHARP, Judge.

SHARP, Judge.

The information charged appellant with carrying a firearm while committing a robbery.1 Appellant pled nolo contendere to the lesser included offense of robbery with a weapon, and reserved his right to appeal the lower court’s denial of his motion to suppress a confession. He was adjudicated guilty and sentenced to four years of imprisonment.

Under State v. Ashby, 245 So. 2d 225 (Fla.1971), a defendant may enter a plea of nolo contendere reserving the right to appeal a legal issue. An Ashby nolo plea is only permissible where the legal issue to be determined on appeal is dispositive of the case. Brown v. State, 376 So. 2d 382 (Fla.1979). The Brown court held that as a matter of law a confession may not be considered dispositive of the case for purposes of an Ashby nolo plea.2 Because of the varying decisions in this area, the Brown court allowed the petitioner to withdraw his plea and plead anew.

In the instant case the appellant entered his Ashby nolo plea prior to the decision in Brown. Therefore this cause is remanded to allow appellant to withdraw his plea of nolo contendere and plead anew if he so desires. Heath v. State, 379 So. 2d 194 (Fla.5th DCA 1980). If appellant withdraws his plea the state shall have the option of prosecuting appellant on the original charge. Bell v. State, 262 So. 2d 244 (Fla.4th DCA 1972).

REMANDED for further proceedings.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur. . § 812.13(2)(a), Fla.Stat. (1979); § 790.001(6), Fla.Stat. (1979).

. Subsequent to Brown, confessions have been held dispositive for the purposes of an Ashby nolo plea if the state so stipulates. Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980); Oest-erle v. State, 382 So. 2d 1293 (Fla.2d DCA 1980). In this case the state did not stipulate that appellant’s confession was dispositive.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Logan Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982)
    …that a stipulation by the parties that a case could not be prosecuted without the benefit of a confession, enabled the motion to suppress to be dispositive of the case. Accord, Alexander v. State, 399 So. 2d 110 (Fla. 1st DCA 1981); Snell v. State, 388 So. 2d 1353, 1354, n. 2 (Fla. 5th DCA 1980); Oesterle v. State, 382 So. 2d 1293 (Fla. 2d DCA 1980). This court, in Sune v. State, 402 So. 2d 11 (Fla. 3d DCA 1981), recognized that if there had been evidence of a stipulation between counsel, it would be appropri…
  • State v. McCLAIN, 509 So. 2d 1360 (Fla. 2d DCA 1987)
    …inal plea, it was as if a plea had never been entered ab initio, Bell v. State, 262 So. 2d 244 (Fla. 4th DCA), cert. denied, 265 So. 2d 50 (Fla.1972), and the state had the option of prosecuting the defendant on the original charges. Snell v. State, 388 So. 2d 1353 (Fla. 5th DCA 1980). Once these charges were refiled, the defendant could only plead to lesser charges with the consent of the court and of the prosecuting attorney. Fla.R.Crim.P. 3.170(g). Since the prosecuting attorney did not consent to the court…
  • Maxwell v. State, 917 So. 2d 404 (Fla. 5th DCA 2006)
    …on, however, and in fact the state attorney's detailed recitation of the evidence it would offer at trial makes it clear that the confession was not dispositive.”) (citing Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982); Jackson); Snell v. State, 388 So. 2d 1353, 1354 n. 2 (Fla. 5th DCA 1980) (“Subsequent to Brown, confessions have been held dispositive for the purposes of an [State v.], Ashby [245 So. 2d 225 (FIa.1971) J nolo plea if the state so stipulates. In this case the state did not stipulate that ap…

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