T.G., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court considered whether appellate jurisdiction was properly obtained in a juvenile case where the appellant failed to file a motion to withdraw his plea in the trial court.
The court held that the rules and statutes governing appeals from guilty or nolo contendere pleas in criminal cases do not apply to juvenile delinquency cases.
The appellant, a juvenile, appealed a plea without first filing a motion to withdraw the plea in the trial court. The state argued that appellate juri…
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ORFINGER, M., Senior Judge.
T.G. appeals from an adjudication of delinquency and an order of disposition following pleas of no contest to felony charges and violation of community control. He contends that he was denied the constitutional right to counsel at both the plea and dispositional hearings. We agree and reverse.
Appellant was uncounseled at both the plea and dispositional hearings. At the plea hearing, the trial judge asked appellant if he wished to have an attorney appointed for him, and he replied in the negative. No further inquiry was made. At the dispositional hearing, there was no inquiry at all as to counsel. A juvenile defendant must be advised of his right to counsel, and if he chooses to waive counsel, the court must query the defendant to determine if the waiver was freely and intelligently made. Rule 8.165(b)(2), Fla. R. Juv. P. Only after a thorough inquiry has been made as required by the rule, may a plea be taken. J.O. v. State, 717 So. 2d 185 (Fla. 5th DCA 1998). Counsel is required at each stage of the proceeding. Rule 8.165(a), Fla. R. Juv. P. The state contends that the issue has not been preserved for appeal because appellant never moved the trial court to withdraw the plea, but failure to comply with Rule 8.165 is fundamental error. J.O., supra; J.R.V. v. State, 715 So. 2d 1135 (Fla. 5th DCA 1998).
REVERSED.
W. SHARP and PETERSON, JJ., concur.
to consider the appeal because appellant had failed to file a motion in the trial court to withdraw his plea, and cites L.L. v. State, 429 So. 2d 347 (Fla. 5th DCA 1983), as authority for the proposition that jurisdiction here requires that a motion to withdraw the plea be filed and denied before appellate jurisdiction can be obtained.
L.L. applied section 924.06(3),2 Florida Statutes and Florida Rule of Appellate Procedure 9.140(b)(1) to juvenile cases, but it appears to have been implicitly overruled by State v. T.M.B., 716 So. 2d 269 (Fla.1998), which held that section 924.051(4) does not apply to juvenile appeals. Section 924.051(4) and section 924.06(8) are virtually identical, as is Florida Appellate Rule 9.140(b)(1) in its application here. It thus appears that the statutes and rules dealing with appeals from guilty or nolo pleas in criminal cases do not apply to similar appeals in juvenile delinquency cases. Appeals in juvenile delinquency cases are governed by the original Chapter 39 of the Florida Statutes, now transferred to Chapter 985, and by Florida Rules of Appellate Procedure 9.145. Robinson v. State, 373 So. 2d 898 (Fla.1979) and Walker v. State, 565 So. 2d 873 (Fla. 4th DCA 1990), also cited by the state, are criminal cases and do not apply to juvenile appeals.
REHEARING DENIED.
W. SHARP, and PETERSON, JJ„ concur. . Preserving an issue for appeal confers subject matter jurisdiction on the appellate court. Any distinction between the two is semantical. The terms are often used interchangeably. See, e.g., White v. State, 661 So. 2d 40 (Fla. 2d DCA 1995).
. Section 924.06(3) states: A defendant who pleads guilty with no express reservation of the right to appeal a legally dispositive issue, or a defendant who pleads nolo contendere with no express reservation of the right to appeal a legally dispositive issue, shall have no right to a direct appeal.
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State v. T.G., 800 So. 2d 204 (Fla. 2001)…QUINCE, J. We have for review T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999), which expressly and directly conflicts with the decisions in J.M.B. v. State, 750 So. 2d 654 (Fla. 2d DCA 1999), J.S. v. State, 658 So. 2d 638 (Fla. 2d DCA 1995), and J.L. v. State, 650 So. 2d 219 (Fla. 3d DCA 1995). We have jur…
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D.C.W. v. State, 775 So. 2d 363 (Fla. 2d DCA 2000)…t time on appeal because the failure to adequately advise a juvenile of his right to counsel constitutes fundamental error.1 See S.S. v. State, 744 So. 2d 600, 601 (Fla. 2d DCA 1999); B.P. v. State, 759 So. 2d 741 (Fla. 5th DCA 2000); T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999), review granted, 751 So. 2d 1254 (Fla.2000). Accordingly, we reverse and remand this matter to the trial court with directions [*365] that D.C.W. be allowed to withdraw his plea. After the trial court accepted the plea, D.C.W. w…
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State v. B.P., 810 So. 2d 918 (Fla. 2002)…QUINCE, J. We have for review B.P. v. State, 759 So. 2d 741 (Fla. 5th DCA 2000), which cited to the decision in T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999), a case that was accepted for review by this Court. See State v. T.G., 751 So. 2d 1254 (Fla.2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we approve the decision of the Fifth Dis…1 / 2
Previewing 3 of 7 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)
- State v. T.M.B., 716 So. 2d 269 (Fla. 1998)
- J.R.V. v. State, 715 So. 2d 1135 (Fla. 5th DCA 1998)
- J.O. v. State, 717 So. 2d 185 (Fla. 5th DCA 1998)
- In the Interest of L.L. v. State, 429 So. 2d 347 (Fla. 5th DCA 1983)
- White v. State, 661 So. 2d 40 (Fla. 2d DCA 1995)
- Keene v. Nudera, 661 So. 2d 40 (Fla. 2d DCA 1995)
- Walker v. State, 565 So. 2d 873 (Fla. 4th DCA 1990)