DOUGLAS BERRY DUCKWORTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An appeal following a nolo contendere plea is permissible only when the legal issue reserved for appeal is dispositive of the case.
The defendant pleaded nolo contendere to probation violations, reserving the right to appeal the denial of his motion to disqualify the trial judge. T…
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PER CURIAM.
The defendant pleaded nolo contendere to a violation of probation charge. He was adjudicated guilty of two counts of burglary and one count of grand theft. He was sentenced to two concurrent terms of 30 months incarceration. On this appeal, he urges error upon the denial of his motion to disqualify the trial judge pursuant to Rule 3.230, Florida Rules of Criminal Procedure.
The defendant had previously appeared before the same judge upon an affidavit charging a violation of probation. The previous affidavit had been dismissed by the State because the victim had refused to testify out of fear. The defendant, prior to his entry of his plea of nolo contendere, filed a motion to disqualify the judge because of the judge’s knowledge of the circumstances of the dismissal. The motion was denied. At the time of the entry of the nolo contendere plea, the defendant reserved the right to appeal the denial of his motion for disqualification of the judge.
The law is well established in this state that an Ashby1 nolo plea is permissible only when the legal issue to be determined is dispositive of the case. Brown v. State, 376 So. 2d 382 (Fla.1979). It is clear that a change of judicial personnel would not have disposed of the case.
Cases since Brown, supra, have consistently dismissed appeals where the issue sought to be reversed was not dispositive of the case. State v. Carr, 438 So. 2d 826 (Fla.1983); Cauley v. State, 444 So. 2d 964 (Fla. 1st DCA 1984); Turner v. State, 429 So. 2d 318 (Fla. 1st DCA 1983); Puccio v. State, 424 So. 2d 85 (Fla. 1st DCA 1982); Hardison v. State, 385 So. 2d 738 (Fla. 2d DCA 1980).
Accordingly, the appeal is dismissed.
MILLS and NIMMONS, JJ., and PEARSON, TILLMAN, (Ret.) Associate Judge, concur. . State v. Ashby, 245 So. 2d 225 (Fla.1971).
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Francesco Zambuto v. State, 731 So. 2d 46 (Fla. 4th DCA 1999)…e lower court’s decision, there will be no trial of the case.” Vaughn v. State, 711 So. 2d 64, 65 (Fla. 1st DCA), review denied, 722 So. 2d 195 (Fla. 1998). Neither of the rulings that Zambuto seeks to appeal is dis-positive. See Duckworth v. State, 469 So. 2d 913 (Fla. 1st DCA 1985)(holding that ruling on motion for recusal not disposi-tive). Accordingly, we dismiss the instant appeal. Such dismissal, however, is without prejudice to Zambuto’s right to file a motion in the lower court seeking to withdraw his…
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Weber v. State, 492 So. 2d 1166 (Fla. 4th DCA 1986)…r, 438 So. 2d 826 (Fla.1983). Courts in numerous cases have held that the matter is jurisdictional, i.e., the appellate court cannot reach the merits of an appeal if the issue on appeal was not dispositive below. See Carr, supra; Duckworth v. State, 469 So. 2d 913 (Fla. 1st DCA 1985); D.K.G. v. State, 460 So. 2d 549 (Fla. 5th DCA 1984); Banks v. State, 467 So. 2d 386 (Fla. 5th DCA 1985); Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982); Sune v. State, 402 So. 2d 11 (Fla. 3d DCA 1981); Hardison v. State, 385…
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Silva v. State, 499 So. 2d 3 (Fla. 3d DCA 1986)…the evidence that this would not have been dispositive of the criminal charges and the possible death sentences which the defendant was facing. State v. Carr, 438 So. 2d 826 (Fla.1983); Brown v. State, 376 So. 2d 382 (Fla.1979); Duckworth v. State, 469 So. 2d 913 (Fla.1985).…
Authorities Cited
- State v. Ashby, 245 So. 2d 225 (Fla. 1971)
- Brown v. State, 376 So. 2d 382 (Fla. 1979)
- State v. Carr, 438 So. 2d 826 (Fla. 1983)
- Hardison v. State, 385 So. 2d 738 (Fla. 2d DCA 1980)
- Puccio v. State, 424 So. 2d 85 (Fla. 1st DCA 1982)
- Ramos v. State, 429 So. 2d 318 (Fla. 2d DCA 1981)
- Cauley v. State, 444 So. 2d 964 (Fla. 1st DCA 1983)