RICARDO RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Following a mistrial based on alleged prosecutorial misconduct involving improper witness questioning, Rodriguez pleaded guilty to one count and no contest to two others, while reserving the right to appeal double jeopardy claims. The court affirmed, rejecting both the double jeopardy claim and Rodriguez's argument that he should be allowed to withdraw his guilty plea due to an error in reserving the appeal right.
The court affirmed the judgment on both counts. The trial court did not err in denying the double jeopardy motion as there was no finding or evidence of intentional prosecutorial misconduct. Although the court acknowledged the trial court erred in allowing the appeal reservation for the guilty plea count, it declined to reverse because the identical jeopardy issue was properly preserved for counts II and III (the no contest pleas) and was affirmed on the merits.
[1] A defendant may not appeal from a judgment entered upon a plea of guilty.
[2] A defendant may appeal from a judgment entered upon a plea of nolo contendere only with an express reservation of the right to appeal from a prior order, identifying with…
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Join FLexlaw to unlock all legal intelligence“Finding no error or abuse of discretion in the court's denial of Appellant's motion to dismiss, we affirm.”
The court's resolution of the double jeopardy claim based on prosecutorial misconduct.
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Join FLexlaw to unlock all legal intelligenceDuring trial, the state questioned a witness in violation of a prior in limine order, eliciting answers about Rodriguez's prior conduct. Rodriguez mov…
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STONE, Judge.
Following a mistrial, Appellant entered a plea of “no contest” to counts II and III of the information and a plea of “guilty” to count I. Incident to all pleas, the trial court allowed Appellant to reserve the right to appeal the court’s rejection of his double jeopardy claims.
The mistrial and resulting double jeopardy claim were based on the state’s questioning of a witness which elicited answers alluding to Appellant’s prior conduct, an area of questioning barred by a prior order in limine. Appellant asserts that this was intentional misconduct. However, the trial court made no such finding. The trial court’s decision is supported by the record. Additionally, we note that the defense (as counsel acknowledged at trial) did not contend that the state intentionally sought an improper response from the witness. Finding no error or abuse of discretion in the court’s denial of Appellant’s motion to dismiss, we affirm. See Fuente v. State, 549 So. 2d 652 (Fla.1989). See also Sapp v. State, 411 So. 2d 363 (Fla. 4th DCA 1982).
Appellant also contends that he is entitled to withdraw his guilty plea as to count I because the trial court erred by allowing him to reserve the right to appeal the double jeopardy issue as to a count to which he pled “guilty” rather than “no contest.” The state does not dispute Appellant’s argument that only issues reserved incident to a plea of no contest may be preserved for appeal. See Robinson v. State, 373 So. 2d 898 (Fla.1979); Newbold v. State, 521 So. 2d 279 (Fla. 2d DCA 1988); Fla.R.App.P. 9.140(b); Fla.R.Crim.P. 3.172(c)(4); § 924.06(3), Fla.Stat. (1991). Florida Rule of Appellate Procedure 9.140(b)(1) provides: A defendant may not appeal from a judgment entered upon a plea of guilty; nor may a defendant appeal from a judgment entered upon a plea of nolo contendere without an express reservation of the right of appeal from a prior order of the lower tribunal, identifying with particularity the point of law being reserved.
Notwithstanding the state’s concession that the court erred by allowing the double jeopardy issue to be preserved for appeal as to count I, we decline to reverse on this basis because the identical issue, the jeopardy claim, applicable to all three counts, was properly preserved for our review as to counts II and III and we have affirmed as to that issue. To allow Appellant to withdraw his plea as to the one count while resolving the identical issue as to the other two counts under these circumstances would truly place form over substance.
Therefore, the judgment and sentence are affirmed as to both counts.
POLEN, J„ and OWEN, WILLIAM C. Jr., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Lewis v. State, 827 So. 2d 1052 (Fla. 5th DCA 2002)…e plea agreement was not bargained for, Lewis is precluded from challenging her convictions based on a double jeopardy violation because she did not reserve the right to appeal. Watson v. State, 702 So. 2d 584 (Fla. 2d DCA 1997); Rodriguez v. State, 622 So. 2d 1084 (Fla. 4th DCA 1993); Ford v. State, 556 So. 2d 483 (Fla. 2d DCA 1990); Wells v. State, 390 So. 2d 808 (Fla. 5th DCA 1980). We therefore affirm her convictions. As to the second issue, a sentencing error that occurs after the effective date of the a…
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Taccariello v. State, 664 So. 2d 1118 (Fla. 4th DCA 1995)…rand theft and fraud violate double jeopardy prohibitions. We find that, having entered a guilty plea without making an express reservation of the right to appeal, appellant has waived her right to a direct appeal of this matter. Rodriguez v. State, 622 So. 2d 1084 (Fla. 4th DCA 1993); Ford v. State, 556 So .2d 483 (Fla. 2d DCA 1990). We therefore reverse and remand with directions that the trial court dismiss the charges brought against appellant pursuant to section 415.111, Florida Statutes (1991), and rese…
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State v. Balezos, 765 So. 2d 819 (Fla. 4th DCA 2000)…appeal followed. The sole issue on appeal is whether the successor judge erred in dismissing the case against Balezos. A trial court’s decision to grant a motion to dismiss will not be reversed absent an abuse of discretion. See Rodriguez v. State, 622 So. 2d 1084, 1084 (Fla. 4th DCA 1993). The state admits that a mistrial was properly granted at the original trial due to the introduction of collateral crimes but argues that the successor judge erred in finding that double jeopardy prevented a retrial. Contr…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Fuente v. State, 549 So. 2d 652 (Fla. 1989)
- Newbold v. State, 521 So. 2d 279 (Fla. 2d DCA 1988)
- Shepard v. State, 411 So. 2d 363 (Fla. 4th DCA 1982)
- Sapp v. State, 411 So. 2d 363 (Fla. 4th DCA 1982)