CHARLES RAY JONES, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's appeal was procedurally barred because he did not file a proper motion to withdraw his plea before appealing and had waived his right to appeal by pleading nolo contendere without reservation.
[1] A defendant who pleads nolo contendere without expressly reserving the right to appeal waives that right.
[2] A trial court lacks jurisdiction to consider post-conviction relief motions after a notice of appeal has been filed.
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Join FLexlaw to unlock all legal intelligenceDefendant pled nolo contendere to grand theft charges without reserving the right to appeal, having signed a waiver. He later attempted to appeal pro …
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SCHEB, Judge.
Defendant Charles Ray Jones, Sr., appeals his convictions and sentences for three counts of grand theft.
On April 2, 1984, at his sentencing hearing, the defendant pled nolo contendere to two charges of second-degree grand theft in Circuit Court Case No. 83-1375 and one count of first-degree grand theft in Circuit Court Case No. 83-1385 without reserving the right to appeal. Before the hearing, defendant had signed a document captioned “Acknowledgment and Waiver of Rights.” This document contained a clause stating defendant understood that by pleading no contest without expressly reserving the right to appeal he waived that right. The trial judge determined that defendant understood the document and freely and voluntarily signed it. Fla.R.Crim.P. 3.170(j). The defense attorney stipulated that there was a factual basis for the plea.
The trial court sentenced defendant to four years imprisonment on all counts to run concurrently.
On April 4, 1984, defendant, pro se, notified the trial court that he wished to appeal. On April 18 defendant, pro se, filed with the clerk of the circuit court a “request to appeal sentence.” His attorney filed a timely notice of appeal on April 27, challenging defendant’s conviction and sentence.
On May 2, 1984, defendant filed two letters with the clerk of the circuit court asserting his plea was coerced. The trial judge treated these letters as motions for post-conviction relief. Fla.R.Crim.P. 3.850. He denied the motions on the ground that the trial court lacked jurisdiction, because a notice of appeal had already been filed with this court.
Defendant’s counsel, the public defender, filed an Anders brief with this court contending that there were no meritorious grounds for the appeal. He certified that he had sent a copy of this brief and the record to the defendant. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
In its answer brief the state concurred with defense counsel’s contention. As dictated by Anders, the public defender raised issues in his brief which he considered might arguably support the appeal. Following our practice, we notified defendant that he could file a supplemental brief within thirty days of our order dated December 12, 1984. We informed the defendant that he could bring to our attention any matters he felt should be considered in connection with his appeal, and that he should send a copy of his brief to the attorney general’s office. Defendant did not file a supplemental brief.
Since this court’s role in reviewing Anders briefs has not recently been discussed in opinions, we take the occasion to do so now. Where an Anders brief is filed, we review the arguable points raised by defense counsel. In addition, we examine the record of the proceedings sent to us. Our review includes making a determination of whether the defendant was charged with an offense under Florida law, the trial court had jurisdiction over defendant, and the judgment and sentence conform to the requirements of law. If we agree with the public defender’s analysis and the points raised are controlled by well settled principles, we usually enter a per curiam affirmance without opinion (PCA).
The PCA device, as discussed in Whipple v. State, 431 So. 2d 1011 (Fla. 2d DCA 1983), expedites disposition of appeals and prevents repetition of well established principles of law. This, in turn, avoids the proliferation of duplicative opinions in the Southern Reporter and lessens the burden on attorneys in their research.
As a result of our review in this case, we determined that the defendant did not file a proper motion to withdraw his plea before his appeal; therefore, there is no basis for appeal on the merits.1 Robinson v. State, 373 So. 2d 898 (Fla.1979); Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979).
Moreover, defendant’s right to review is limited to an appropriate collateral attack, because he did not reserve the right to appeal. See Fla.R.Crim.P. 3.172(c)(iv). If defense counsel had filed a statement of judicial acts to be reviewed informing this court that defendant had not moved to withdraw his plea, we would have dis missed the appeal at an earlier stage without prejudice to defendant’s seeking relief under a proper rule 3.850 motion. McGinty v. State, 463 So. 2d 495 (Fla. 2d DCA 1985).
Accordingly, we dismiss defendant’s appeal without prejudice to his seeking relief under a proper rule 3.850 motion.
RYDER, C.J., and SCHOONOVER, J., concur. . Included in defendant’s April 18 letter requesting to appeal his sentence was a statement that he wished to withdraw his plea. However, neither counsel nor the court treated this letter as a motion to withdraw the plea.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bridges v. Dugger, 518 So. 2d 298 (Fla. 2d DCA 1987)…s objection, and did not move to withdraw that plea prior to the imposition of a sentence which on its face is lawful. Accordingly, even if a notice of appeal had been filed the appeal could have been subject to dismissal. See, e.g., Jones v. State, 468 So. 2d 253 (Fla. 2d DCA 1985); Taylor v. State, 453 So. 2d 483 (Fla. 2d DCA 1984); Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). In such a situation it is manifestly clear that even had counsel done as Bridges argues he was obliged to do, this would have…
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Lodson v. State, 478 So. 2d 477 (Fla. 2d DCA 1985)…ffirmed. GRIMES, A.C.J., and LEHAN, J., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), permits a motion to withdraw where a public defender finds there are no meritorious grounds for appeal. See Jones v. State, 468 So. 2d 253 (Fla. 2d DCA 1985), for a recent explanation of the role of this court when an Anders brief is filed.…
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Taylor v. State, 522 So. 2d 924 (Fla. 2d DCA 1988)…493 (1967). Following our practice, we notified the defendant that he could file a supplemental brief within thirty days of our order. After receiving defendant’s pro se brief and the state’s answer brief, we reviewed this case. See Jones v. State, 468 So. 2d 253 (Fla. 2d DCA 1985). The defendant argues four points in his pro se brief. We only find merit in his contention that the trial court erred in adding points for legal constraint to the score-sheet prepared after his violation of probation. With the…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- 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)
- Whipple v. State, 431 So. 2d 1011 (Fla. 2d DCA 1983)
- McGINTY v. State, 463 So. 2d 495 (Fla. 2d DCA 1985)