JOHN JAMERSON

v.

STATE OF FLORIDA

ORFINGER, J.

John Jamerson pleaded no contest to possession of a firearm by a convicted felon and tampering with evidence. He appeals the trial court’s denial of his motion to suppress.

Because the issue is not dispositive and he did not file a timely motion to withdraw his plea, we affirm.

Law enforcement responded to an alleged home invasion at Jamerson’s residence, believing Jamerson was a victim. Jamerson was interviewed concerning the incident. Because he was not a suspect, Jamerson was not read Miranda1 warnings.

However, during the course of the investigation, Jamerson provided inconsistent statements regarding the alleged invasion. Specifically, Jamerson did not initially tell law enforcement that he had returned fire at the individuals who allegedly invaded his home.

The focus of the investigation subsequently shifted to whether Jamerson was justified in shooting at the alleged home invaders pursuant to Florida’s Stand Your Ground statute.

See § 776.032, Fla. Stat. (2017). After he was charged, Jamerson moved to suppress his un-Mirandized statements. That motion was denied.

He then entered a no contest plea. Before doing so, the trial court informed Jamerson during the plea colloquy, that he had preserved his right to appeal the denial of his motion to suppress, stating:

I denied the motion to suppress, but when you enter the waiver of rights form, you’re waiving your right to appeal. What I did explain to [defense counsel] is I would actually, in your case, preserve your right to appeal the Court’s rule [sic] in denying the motion to suppress. So you could still appeal my ruling on that—on that issue, so I will preserve that and I will be happy to appoint counsel to help you out with that appeal.

That representation was reinforced when, after sentencing Jamerson, the trial court stated:

So I am also going to preserve your right to appeal the Court’s ruling in denying the motion to suppress. And I’ve gone ahead and signed the order appointing counsel to help you out for the purposes of that appeal.

However, contrary to the trial court’s representations, Jamerson’s appellate rights were limited because following the entry of a nolo contendere plea, only the denial of a 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 dispositive order may be reviewed on appeal if the right to appeal is reserved. See Fla. R. App. P. 9.140(b)(2)(A)(i).

The trial court never found, and the State never stipulated, that Jamerson’s motion to suppress was dispositive. Although a finding of dispositiveness could be inferred from a trial court’s comments,2 after reviewing the record, we conclude that Jamerson’s motion to suppress was not dispositive. Multiple people were in Jamerson’s home during the alleged invasion and witnessed the events that led to the charges. See, e.g., M.N. v. State, 16 So. 3d 280, 281 (Fla. 2d DCA 2009) (“A motion is dispositive if the State could not proceed to trial if the defendant prevailed on the appeal of the ruling on the motion.” (citations omitted)). Thus, the State could have proven the charges without Jamerson’s un-Mirandized statements.

Under these circumstances, we are obliged to affirm the convictions and sentences. See Leonard v. State, 760 So. 2d 114, 129 (Fla. 2000); Murphy v. State, 149 So. 3d 1163, 1164 (Fla. 1st DCA 2014). However, we recognize that the trial court affirmatively, but unintentionally, misled Jamerson into believing he could appeal the denial of his motion to suppress following his nolo contendere plea. The trial court’s erroneous assurances, coupled with defense counsel’s silence, calls into question the voluntary and intelligent nature of Jamerson’s plea. See Murphy, 149 So. 3d at 1164. A challenge to the voluntary and intelligent nature of a plea falls within the limited class of 2 See Lamb v. State, 55 So. 3d 751, 753 (Fla. 2d DCA 2011) (“Because the trial court gave Lamb the impression that she was preserving her right to appeal the ruling on her motion to suppress, we conclude that a finding of dispositiveness can be inferred from the record.” (citing Leisure v. State, 429 So. 2d 434, 436 (Fla. 1st DCA 1983) (holding dispositiveness was implied where trial court instructed defendant that entry of plea would not waive right to appeal suppression issue))). 3 issues that a defendant can raise on appeal without specifically reserving the right to do so. But, the defendant must first preserve the issue by raising it in the trial court in a timely motion to withdraw plea. Williams v. State, 134 So. 3d 975, 976 (Fla. 1st DCA 2012).

Unfortunately, it is too late for Jamerson to file a motion to withdraw his plea, and thus, too late to preserve the issue for appeal as required under Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii). Even if we remanded this case to the trial court, the time limitations governing motions to withdraw pleas could not be met. The rule, which allows the withdrawal of a plea after sentencing, has a thirty-day window. See Fla. R. Crim. P. 3.170(l). After the thirty-day window has passed, the trial court has no jurisdiction to act.3 See Fox v. State, 166 So. 3d 894, 895-96 (Fla. 4th DCA 2015).4 Despite these procedural hurdles, Jamerson may have an available remedy. If, based on the misadvice he received, Jamerson wishes to challenge the voluntariness of his plea, he can do so pursuant to Florida Rule of Criminal Procedure 3.850(a)(5). It would be appropriate to appoint counsel to assist Jamerson in determining whether to pursue such relief if he files a motion requesting counsel.

AFFIRMED.

EISNAUGLE, J., concurs specially with opinion.

COHEN, J., dissents with opinion. 3 In the past, we have dismissed appeals under similar circumstances for lack of jurisdiction because the issue was unpreserved. See, e.g., Hicks v. State, 915 So. 2d 740 (Fla. 5th DCA 2005). However, the supreme court has determined that it is an issue of preservation of error, not jurisdiction. Leonard, 760 So. 2d at 118. 4 Relying on State v. Vanderhoff, 14 So. 3d 1185 (Fla. 5th DCA 2009), the dissent argues that we should remand and allow Jamerson to withdraw his plea. However, that case is distinguishable. There, this Court ordered the defendant to be resentenced. As a result, our direction to allow the defendant to withdraw his plea was consistent with the time contraints set forth in rule 3.170(l). 4 EISNAUGLE, J., concurring specially. Case No. 5D19-348 I agree that we must affirm based upon Leonard v. State, 760 So. 2d 114, 118–19 (Fla. 2000), without prejudice to Jamerson’s right to challenge the voluntariness of his plea in a rule 3.850 proceeding. However, I would not reach the merits of a yet unfiled motion for appointment of counsel.

Likewise, I do not join footnote 3 of the majority opinion. While I agree that the reasoning in Leonard draws our conclusion in Hicks v. State, 915 So. 2d 740 (Fla. 5th DCA 2005) into question, Leonard is not directly on point because it deals with a separate issue. As such, in my view, we remain bound by our decision in Hicks. 5 CASE NO. 5D19-348 COHEN, J., dissenting.

I am in complete agreement with the majority that the trial court misadvised Jamerson that if he entered a plea, he retained his right to appeal the denial of his motion to suppress. I also agree that by entering his plea, Jamerson lost the ability to challenge the denial of that motion. Given these facts, it is undisputed that Jamerson’s plea, which he entered under a mistaken belief about his rights on appeal, was involuntary. Our disagreement is whether, under the circumstances of this case, we should affirm and let Jamerson take his chances in a postconviction proceeding, or remand and allow Jamerson the opportunity to withdraw his plea.

In my view, the matter comes down to fundamental fairness. I recognize that in the usual case, a defendant must file a motion to withdraw plea to preserve the issue of voluntariness on appeal. See Leonard v. State, 760 So. 2d 114, 119 & n.13 (Fla. 2000);

Fla. R. App. P. 9.140. In most cases, that requirement is eminently sensible. However, in the instant case, such requirement is illogical. The trial court specifically assured Jamerson that he could appeal the denial of his motion to suppress. The majority presents no reasoning as to why, given the trial court’s representation, Jamerson would have had any reason to withdraw his plea on voluntariness grounds prior to filing his appeal.

In State v. Vanderhoff, 14 So. 3d 1185, 1186 (Fla. 5th DCA 2009), the defendant entered into an open plea after receiving misinformation from the trial court, his counsel, and the state that the trial court could depart from the 10/20/Life statute at sentencing. At the sentencing hearing, the state informed the trial court that it was required to follow the 6 sentencing statute. Id. at 1188. The trial court nevertheless entered a downward departure sentence, and the state appealed. Id.

This Court agreed with the state that the trial court misinformed the defendant about his potential sentences and reversed the sentences imposed. Id. at 1189. Notably, on remand, this Court permitted the defendant to withdraw his plea, finding that based on the misinformation, the defendant did not understand the reasonable consequences of his plea. Id.

Likewise, here, Jamerson was misinformed by the trial court and resultingly will not become aware of the implications of his plea until this opinion is released. Unlike a challenge to voluntariness based on an issue that occurred during a plea hearing or a defendant’s competence at the time of a plea hearing, which are immediately apparent, the involuntariness of Jamerson’s plea was not known to him prior to filing his appeal.

The majority cites to Murphy v. State, 149 So. 3d 1163 (Fla. 1st DCA 2014), in which a trial court gave a defendant similarly incorrect assurances about his ability to appeal, but the First District nevertheless affirmed because the defendant had not moved to withdraw his plea. The Murphy court also failed to provide any reasoning as to why, under such circumstances, the defendant would have moved to withdraw his plea prior to filing his appeal. I believe Murphy was incorrectly decided and would certify conflict.

Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) was not intended to insulate trial courts that incorrectly inform defendants of their legal rights. 5 I believe that common sense and basic fairness would dictate that Rule 9.140(b)(2)(A)(i) does not apply to the 5 I in no way suggest that this mistake was anything other than inadvertent on the trial court’s part. 7 circumstances of this case. We are a court of error correction. There is no dispute that error of the most fundamental nature occurred, and I believe we should correct it. 6 The majority’s application of Murphy, 149 So. 3d 1163, and blind adherence to Rule 9.140(b)(2)(A)(i) under these circumstances results in affirmance of the trial court’s blatant error at Jamerson’s expense. Given this Court’s role and precedent, as well as the undeniable unfairness of such an outcome, I respectfully dissent. 6 The majority offers Jamerson solace in his ability to seek relief under Florida Rule of Criminal Procedure 3.850(a)(5). By the time Jamerson files such motion, he will have served the majority of his sentence, and starting over will make little practical sense.

Additionally, there is no guarantee that Jamerson will be successful in his postconviction proceeding. Jamerson’s trial counsel has been practicing for more than ten years. In all likelihood, he would have advised Jamerson that his motion to suppress was not dispositive, and therefore, not appealable. In the face of conflicting advice from his trial counsel and the trial court, it is obvious which representation Jamerson would have relied on. Furthermore, Jamerson’s trial counsel could well have had a strategic reason for not correcting the trial court, as the mistake allowed for a possible argument that the trial court’s finding of the dispositive nature of the motion to suppress could be inferred from the record. See Lamb v. State, 55 So. 3d 751, 753 (Fla. 2d DCA 2011). 8