FRANCESCO ZAMBUTO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's appeal of pre-trial motions denying removal of public defender and recusal of trial judge must be dismissed because neither ruling is legally dispositive under Florida appellate rules.
A defendant may appeal a prior dispositive order following a guilty plea only if the ruling would prevent trial regardless of appellate outcome, and motions for recusal and removal of counsel are not dispositive.
[1] A motion for recusal of a trial judge is not a dispositive order that may be appealed following entry of a guilty plea.
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Definition of legally dispositive order that may be appealed after guilty plea
Zambuto pleaded guilty to attempting to obtain a controlled substance by fraud and sought to appeal the trial court's denial of his pre-trial motions …
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PER CURIAM.
Following his plea of guilty to attempting to obtain a controlled substance by fraud, Francesco Zambuto, the appellant, seeks to appeal the trial court’s denial of his pre-trial motions seeking removal of his public defender and recusal of the trial judge. Despite Zambuto’s attempts during the plea colloquy to reserve his right to appeal the rulings on these motions and the trial judge’s statement to Zambuto that he “believe[d]” that Zambuto could reserve the right to appeal, we must dismiss this appeal.
Following a plea of guilty or nolo contendere, a defendant may “expressly reserve the right to appeal a prior disposi-tive order of the lower tribunal.... ” Fla. R.App. P. 9.140(b)(2)(A) (emphasis added); see also §§ 924.051(4), 924.06(3), Fla. Stat. (1997). An issue is legally dispositive “only if, regardless of whether the appellate court affirms or reverses the 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 plea. See Carlisle v. State, 687 So. 2d 929 (Fla. 4th DCA 1997).
DELL, STEVENSON and HAZOURI, JJ., concur.
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Levine v. State, 788 So. 2d 379 (Fla. 4th DCA 2001)…lant’s first point on appeal, the argument is not preserved because it was not dispositive of the case below. An issue is preserved for appeal on a guilty plea only if it is dispositive of the case. See Fla.R.App.P. 9.140(b)(2)(A); Zambuto v. State, 731 So. 2d 46 (Fla. 4th DCA 1999); see also Weber v. State, 492 So. 2d 1166, 1167 (Fla. 4th DCA 1986). “An issue is legally dispositive ‘only if, regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of t…
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Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007)…ue is legally dis-positive ‘only if, regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of the case.’ ” Levine v. State, 788 So. 2d 379, 380 (Fla. 4th DCA 2001) (quoting Zambuto v. State, 731 So. 2d 46, 46 (Fla. 4th DCA 1999)). [T]he denial of the motion to participate in Drug Court is not a legally dispositive order to the extent necessary to confer jurisdiction in this court. Even if this court reversed and remanded for the court to grant Pena’…
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Efrain PEÑA v. State, 913 So. 2d 1203 (Fla. 4th DCA 2005)…sue is legally dispositive ‘only if, regardless of whether the appellate court affirms or reverses the lower court’s decision, there will be no trial of the case.’ ” Levine v. State, 788 So. 2d 379, 380 (Fla. 4th DCA 2001) (quoting Zambuto v. State, 731 So. 2d 46, 46 (Fla. 4th DCA 1999)). An exception to this rule applies when there is “record evidence of a stipulation between the parties that the issue was dispositive.” Weber v. State, 492 So. 2d 1166, 1167 (Fla. 4th DCA 1986) (citing Finney v. State, 420 S…
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
- Vaughn v. State, 711 So. 2d 64 (Fla. 1st DCA 1998)
- Burke v. Reyes, 687 So. 2d 929 (Fla. 3d DCA 1997)
- Duckworth v. State, 469 So. 2d 913 (Fla. 1st DCA 1985)
- Robert E.H. Carlisle v. State, 687 So. 2d 929 (Fla. 4th DCA 1997)