LAWRENCE MILLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lawrence Miller appeals his conviction for cocaine possession, challenging the trial court's denial of his motion to suppress and objecting to probation conditions and court costs. The appellate court affirmed the convictions but corrected sentencing errors by striking certain non-statutory probation conditions and the court costs assessment.
The court lacked jurisdiction to review the suppression issue because Miller entered a guilty plea, which generally precludes appellate review of such matters absent a postconviction claim of ineffective assistance. However, the court addressed sentencing issues that occurred at the time of the plea. The court affirmed only those probation conditions that were statutorily mandated and orally pronounced, struck the non-statutorily based portions of the probation conditions, and struck the $300 court costs assessment.
[1] A guilty plea generally precludes appellate review of a suppression issue, even if the plea agreement contained a reservation of the right to appeal.
[2] Claims of ineffective assistance of counsel or challenges to the voluntariness of a plea must typically be raised in a postconviction proceeding in the trial court, not o…
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“Section 924.06(3), Florida Statutes (1993), Florida Rule of Criminal Procedure 3.172(c)(iv), and Florida Rule of Appellate Procedure 9.140(b)(1) preclude an appeal after entry of a guilty plea.”
Establishes the jurisdictional bar to appellate review of suppression issues following a guilty plea
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Join FLexlaw to unlock all legal intelligenceLawrence Miller was convicted of possession of cocaine and possession of paraphernalia. He entered a guilty plea that included a reservation of the ri…
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PER CURIAM.
The defendant, Lawrence Miller, appeals his judgment and sentence for possession of cocaine and possession of paraphernalia. He challenges the trial court’s denial of his motion to suppress and the imposition of certain probation conditions and court costs. We affirm the convictions because we lack jurisdiction to review the suppression issue. However, we address certain sentencing errors.
With respect to the suppression issue, we observe that, even though the negotiated plea contained a reservation of the right to appeal this issue, the defendant entered a plea of guilty.
Section 924.06(3), Florida Statutes (1993), Florida Rule of Criminal Procedure 3.172(c)(iv), and Florida Rule of Appellate Procedure 9.140(b)(1) preclude an appeal after entry of a guilty plea. See Robinson v. State, 373 So. 2d 898 (Fla.1979); Ross v. State, 566 So. 2d 356 (Fla. 4th DCA 1990).
Nevertheless, the defendant asserts that his attorney’s erroneous advice to enter a plea of guilty instead of a plea of nolo contendere constitutes ineffective assistance of counsel per se which entitles him to appellate review of the suppression issue without the necessity of seeking postconviction relief in the trial court.
We disagree. The defendant must first assert his claim of ineffective assistance of counsel or challenge the voluntariness of his plea in a postconviction proceeding in the trial court. See Kiriluk v. State, 440 So. 2d 520 (Fla. 4th DCA 1983).
However, the defendant may assert on direct appeal those issues which occur at the time the plea is entered. See Robinson, 373 So. 2d at 902.
Therefore, we address his challenges to the imposition of certain probation conditions and court costs. We strike those portions of conditions four and six that are not statutorily mandated because they were not orally pronounced at sentencing. Accordingly, we affirm only that portion of condition four which prohibits ownership or possession of a firearm and that portion of condition six which prohibits visiting “places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed or used.” See §§ 790.23 and 948.03(1)0), Fla. Stat. (1993); Hart v. State, 651 So. 2d 112 (Fla. 2d DCA), rev. granted, 659 So. 2d 1089 (Fla.1995); Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994).
The trial court also ordered court costs in the amount of $300 as a condition of probation. The trial court did not orally announce the statutory authority supporting the costs, and the judgment and sentence does not delineate the statutory basis for the assessment of this lump sum. Pursuant to Reyes v. State, 655 So. 2d 111, 116-117 (Fla. 2d DCA 1995), we strike the $300 assessment of court costs. Upon remand, the trial court may reimpose appropriate costs after following the procedures outlined in Reyes, 655 So. 2d 111.
Affirmed in part, reversed in part and remanded with directions.
CAMPBELL, A.C.J., and BLUE and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Abel Oliveros Reyes v. State, 655 So. 2d 111 (Fla. 2d DCA 1995)
- Nank v. State, 646 So. 2d 762 (Fla. 2d DCA 1994)
- Hart v. State, 651 So. 2d 112 (Fla. 2d DCA 1995)
- Ross v. State, 566 So. 2d 356 (Fla. 4th DCA 1990)
- In re Forfeiture of 1981 Honda Motorcycle VIN: 2SC0103BM001578 Fla. Tag: 4444333, 440 So. 2d 520 (Fla. 4th DCA 1983)
- Kiriluk v. State, 440 So. 2d 520 (Fla. 4th DCA 1983)