BRYCE LEVINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court dismissed the appeal because the issue raised by the appellant was not dispositive of the case, and therefore not preserved for appeal following a no contest plea.
Appellant pleaded no contest to felony driving while license suspended (habitual offender) and resisting arrest. He appealed the denial of his motion …
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PER CURIAM.
We withdraw our previously issued opinion and substitute the following in its place.
Appellant, Bryce Levine, appeals from his convictions, pursuant to a no contest plea, for felony driving while license suspended (DWLS) (habitual offender) and resisting arrest without violence. Appellant contends that the trial court erred in denying his motion to dismiss where one of the predicate prior convictions upon which the trial court relied in declaring him a habitual offender was uneounseled. We conclude that the issue was not dispositive. Therefore, we dismiss this appeal.
As to appellant’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 the case.’ ” Zambuto, 731 So. 2d at 46 (quoting Vaughn v. State, 711 So. 2d 64, 65 (Fla. 1st DCA 1998)).
In this case, the issue was not dis-positive. The issue of appellant’s prior convictions was raised in a motion to dismiss. As the trial court observed at the hearing on the motion, appellant had several withholds upon which his habitualization could have been based even if the challenged predicate offense was uncoun-seled. This court in State v. Keirn, 720 So. 2d 1085, 1090 (Fla. 4th DCA 1998), held that a withheld adjudication could be considered a “conviction” under section 322.34, Florida Statutes (1995). See also Raulerson v. State, 763 So. 2d 285 (Fla.2000)(agreeing with this court’s interpretation of the term “conviction” as it is used in the DWLS statute). Because the state could have relied on appellant’s withheld adjudications as a basis for habituali-zation, the issue of whether the subject predicate offense was uncounseled was not dispositive of the case and is not preserved on appeal.
Later, at the plea hearing, defense counsel told the judge that the issue was dis-positive. There was no real acknowledgment of the attorney’s assertion by the court.
We thus dismiss this appeal without prejudice to appellant seeking to withdraw his plea in postconviction proceedings. See Zambuto, 731 So. 2d at 46. Because we dismiss his appeal, we do not address appellant’s constitutional challenge to the DWLS statute.
Dismissed.
WARNER, C.J., FARMER and TAYLOR, JJ., concur.
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Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007)…13 So. 2d 1203, 1204 (Fla. 4th DCA 2005), In this context, an “issue 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. Eve…
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Efrain PEÑA v. State, 913 So. 2d 1203 (Fla. 4th DCA 2005)…tribunal.” Fla. R.App. P. 9.140(b)(2)(A)®. In this context, 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.’ ” 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…
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Hawley v. State, 822 So. 2d 552 (Fla. 1st DCA 2002)…g that the appellant asserted a sufficient claim of ineffective assistance of counsel by alleging that his counsel had led him to believe that he could appeal an issue which had not been expressly reserved as part of his nolo plea); Levine v. State, 788 So. 2d 379, 380 (Fla. 4th DCA 2001). “While it is certainly possible [appellant] appreciated that he risked dismissal or summary affirmance of his appeal, so is there the possibility that he reasonably relied upon poor advice from counsel.” Helms, 573 So. 2d a…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Raulerson v. State, 763 So. 2d 285 (Fla. 2000)
- State v. Keirn, 720 So. 2d 1085 (Fla. 4th DCA 1998)
- Vaughn v. State, 711 So. 2d 64 (Fla. 1st DCA 1998)
- Francesco Zambuto v. State, 731 So. 2d 46 (Fla. 4th DCA 1999)
- Sylvina Juste v. Dep't OF Health & Rehabilitative Servs., 492 So. 2d 1166 (Fla. 1st DCA 1986)
- Weber v. State, 492 So. 2d 1166 (Fla. 4th DCA 1986)