EARL DAWSON HUNTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant challenged his nolo contendere plea to drug charges by filing a motion to suppress after sentencing and then appealing. The court dismissed the appeal as untimely and lacking appellable jurisdiction, holding that the unusual procedural sequence—plea first, suppression motion second—does not fall within rules permitting appeals of post-judgment orders.
The appeal is dismissed because: (1) the unorthodox sequence of pleading before moving to suppress is not contemplated by any rule of procedure; (2) Fourth Amendment issues cannot be raised collaterally after a plea under Florida Rule of Criminal Procedure 3.850; (3) appellant was not misled about appellate rights; and (4) the suppression motion was denied orally without a written order, depriving the court of jurisdiction.
[1] An appeal from a judgment and sentence must be timely filed according to appellate rules.
[2] Orders entered after final judgment are appealable only if they concern matters that normally arise post-judgment.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The unorthodox sequence of events followed in the present case is not contemplated by any rule of procedure.”
Establishes that the procedure of pleading nolo contendere first, then reserving suppression rights for later, is not authorized by any Florida rule.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHunter pleaded nolo contendere to drug charges while reserving the right to file a motion to suppress. Sentence (community control) was imposed on May…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Collateral Matters cases and more on FLexlaw
PER CURIAM.
In this case the appellant insisted upon the unusual procedure of pleading nolo con-tendere to drug charges “reserving the right to make a motion to suppress.” His plea was accepted and community control was imposed May 18, 1989, but the motion was not argued until July 21, and notice of appeal was not filed until August 11.
Without question the appeal is untimely if taken from judgment and sentence. Fla.R.App.P. 9.140(b)(2). The question thus arises whether the July 21 order is of an appealable nature. This court previously declined to dismiss the appeal upon motion by the state, preferring to resolve the matter after full briefing by the parties.
Appellant has argued that appeal is authorized by Florida Rule of Appellate Procedure 9.140(b)(1)(C), which speaks of “orders entered after final judgment.” However, a review of case law construing this provision convinces us that the drafters contemplated only matters which normally would arise post-judgment. See, e.g., Harringer v. State, 566 So. 2d 893 (Fla. 4th DCA 1990) (motion to set aside adjudication of insanity); Thompson v. Crawford, 479 So. 2d 169 (Fla. 3d DCA 1985) (order vacating judgment of acquittal); Prado-Gonzalez v. State, 468 So. 2d 991 (Fla. 4th DCA 1985) (denial of motion for postconviction relief after evidentiary hearing); Parrish v. State, 406 So. 2d 505 (Fla. 3d DCA 1981) (modification of probation). The unorthodox sequence of events followed in the present case is not contemplated by any rule of procedure.
An argument perhaps could be made that the trial court, by entertaining appellant’s belated motion to suppress, effectively agreed to consider vacating the prior judgment if appellant could demonstrate that an unlawful search had occurred. However, postconviction proceedings are limited to collateral matters, and not issues which could have been litigated prior to judgment (and thereafter, on plenary appeal). Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980). In other words, appellant normally would be foreclosed from raising his Fourth Amendment issue via Florida Rule of Criminal Procedure 3.850.
This court has also recognized the possibility of collateral relief where the defendant was misled about his appellate rights in connection with a plea. Helms v. State, 573 So. 2d 116 (Fla. 2d DCA 1991). However, the record before us indicates that the trial judge, before taking the plea, offered appellant additional time so his lawyer could “talk to all the witnesses, file appropriate motions, and have a jury trial if necessary.” Appellant indicated he preferred “to get it over with.” While we do not foreclose the possibility of appellant later establishing that he relied on poor advice, this exchange at least suggests appellant appreciated the risk he was taking by pleading when he did.
Finally, and fatally, the motion to suppress was denied orally on the record, but not by written order. This court would therefore lack jurisdiction even if the ruling somehow could be pigeonholed within rule 9.140(b)(2). Billie v. State, 473 So. 2d 34 (Fla. 2d DCA 1985).
Appeal dismissed.
SCHEB, A.C.J., and RYDER and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Reynel Diaz Hijuelos v. State, 73 So. 3d 364 (Fla. 1st DCA 2011)…ng a separate appeal, which is independent of the plenary appeal from the judgment and sentence, for review of an order denying a motion to suppress. Fla. R.App. P. 9.140(b); Eady v. State, 920 So. 2d 1158, 1159 (Fla. 1st DCA 2006); Hunter v. State, 583 So. 2d 369, 370 (Fla. 2d DCA 1991). Although a written order is preferable, because it is unnecessary, a written order entered after sentencing that memorializes an oral ruling that denied a motion to suppress does not begin, [*366] or restart, the time to app…
-
Beatty v. State, 602 So. 2d 628 (Fla. 4th DCA 1992)…We dismiss for lack of an appealable order. Appellant’s motion did not seek relief under rules 3.800 or 3.850, Florida Rules of Criminal Procedure, and rule 9.140 does not authorize an appeal from the order denying this motion. See Hunter v. State, 583 So. 2d 369 (Fla. 2d DCA 1991). DISMISSED. LETTS and DELL, JJ., and OWEN, WILLIAM C., Senior Judge, concur.…
-
Johnson v. State of Fla. & Honorable Stephen M. Cohen, 683 So. 2d 607 (Fla. 4th DCA 1996)…ng probation.” The order entered by the county court in this case vacating petitioner’s conviction is, in our opinion, precisely the type of order contemplated by the rule. See Harringer v. State, 566 So. 2d 893 (Fla. 4th DCA 1990); Hunter v. State, 583 So. 2d 369 (Fla. 2d DCA 1991). We therefore grant certiorari and quash the order dismissing the appeal. FARMER, J., concurs. SHAHOOD, J., dissents with opinion.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lucion Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980)
- Thompson v. Crawford, 479 So. 2d 169 (Fla. 3d DCA 1985)
- Helms v. State, 573 So. 2d 116 (Fla. 2d DCA 1991)
- Billie v. State, 473 So. 2d 34 (Fla. 2d DCA 1985)
- Prado-Gonzalez v. State, 468 So. 2d 991 (Fla. 4th DCA 1984)
- Harringer v. State, 566 So. 2d 893 (Fla. 4th DCA 1990)
- Parrish v. State, 406 So. 2d 505 (Fla. 3d DCA 1981)