JOHN ANTHONY KIRILUK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant who pleads guilty cannot appeal the judgment entered thereon, even if the plea was conditioned on the right to appeal the legality of a search and seizure.
The defendant pled guilty to possession of cannabis, with the apparent understanding that he could appeal the legality of the search and seizure. The …
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WALDEN, Judge.
The State has moved to dismiss Kiri-luk’s appeal on the ground that, since Kiri-luk pled guilty to possession of cannabis, he may not now appeal from the judgment entered thereon. The State is correct. Florida Rule of Appellate Procedure 9.140(b) specifically provides that, “A defendant (in a criminal case) may not appeal from a judgment entered upon a plea of guilty.”
A review of the plea hearing reveals that all concerned were proceeding under a misapprehension of law. The colloquy reflects that, with the approval of the court, Kiriluk pled guilty on the specific condition that he be allowed to appeal as concerns the legality of the search and seizure in his case. We hazard that the parties confused the effect of a guilty plea with that of a plea of nolo contendré where a defendant can appeal upon making an express reservation of the right of appeal with specificity. See Fla.R. App.P. 9.140(b) and Taylor v. State, 355 So. 2d 180 (Fla. 3rd DCA 1978).
However, Kiriluk is not without a remedy. While he has no right to a direct appeal, he can obtain review by means of collateral attack. Bryant v. State, 360 So. 2d 146 (Fla. 2d DCA 1978); Honeycutt, Jr., v. State, 359 So. 2d 503 (Fla. 2d DCA 1978). He could, at least, apply to the court to set aside his plea on the ground that it was given involuntarily. Fla.R.Crim.P. 3.850.
This appeal is
DISMISED.
GLICKSTEIN and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tannihill v. State, 559 So. 2d 608 (Fla. 4th DCA 1990)…at the end of the hearing that the defendant had a right to appeal. All of them were wrong. On the record, the defendant clearly pled guilty, and therefore, has no right to appeal. However, the defendant can seek collateral relief. Kiriluk v. State, 440 So. 2d 520 (Fla. 4th DCA 1983). This does not, however, automatically mean that he may relitigate the question of his competency to stand trial, a matter resolved before any guilty plea was entered. We, therefore, have no jurisdiction and this appeal is dismi…
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Ross v. State, 566 So. 2d 356 (Fla. 4th DCA 1990)…We must reluctantly dismiss this appeal because the defendant, rather than pleading nolo contendere and reserving his right to appeal the denial of the motion to suppress, actually plead guilty, thereby precluding appellate review. Kiriluk v. State, 440 So. 2d 520 (Fla. 4th DCA 1983). What occurred in the trial court is that after the trial court denied the motion to suppress, the following colloquy took place. MR. HALL (Defense Counsel): Your Honor, we would like to resolve it today. Your Honor, would the…1 / 2
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Roberts v. State, 479 So. 2d 879 (Fla. 4th DCA 1985)…PER CURIAM. Since Jerry Roberts pled guilty to a criminal charge, he may not appeal. Kiriluk v. State, 440 So. 2d 520 (Fla. 4th DCA 1983). The appeal is dismissed without prejudice to Roberts’ right to seek collateral relief. Dismissed. DELL, WALDEN, JJ., and BOARD-MAN, EDWARD F. (Retired), Associate Judge, concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Taylor v. State, 355 So. 2d 180 (Fla. 3d DCA 1978)
- State of Fla. Dep't OF Health & Rehabilitative Servs. v. Samuel Barr, M.D., 359 So. 2d 503 (Fla. 1st DCA 1978)
- Honeycutt v. State, 359 So. 2d 503 (Fla. 2d DCA 1978)
- Bryant v. State, 360 So. 2d 146 (Fla. 2d DCA 1978)