DANIEL J. BOGAN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daniel Bogan appeals his convictions for driving under the influence causing serious bodily injury, driving under the influence causing damage or injury, and driving under the influence, claiming they violate double jeopardy. The court affirms, holding that Bogan's double jeopardy argument is not a permissible basis for direct appeal after a guilty plea because he failed to file a motion to withdraw his plea.
A defendant who pleads guilty without reserving the right to appeal may not raise a double jeopardy claim on direct appeal unless the claim falls within the enumerated exceptions in Florida Rules of Appellate Procedure 9.140(b)(2)(A)(ii), such as lack of subject matter jurisdiction or sentencing error. Bogan's double jeopardy argument does not qualify because he failed to file a motion to withdraw his plea.
[1] A defendant who pleads guilty generally has no right to a direct appeal unless the right to appeal a prior dispositive order was expressly reserved or the appeal raises i…
[2] A double jeopardy claim is not a basis for a direct appeal following a guilty plea unless the defendant filed a motion to withdraw the plea.
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“a defendant who pleads guilty has no right to file a direct appeal, except when he expressly reserves the right to appeal a prior dispositive order or when he raises matters as would invalidate the plea itself”
Establishes the general rule limiting direct appeals after guilty pleas to specific reserved or invalidating issues
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDaniel Bogan pled guilty to three charges: driving under the influence causing serious bodily injury, driving under the influence causing damage or in…
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PALMER, J.
Daniel Bogan appeals his judgments and sentences which were entered by the trial court after he pled guilty to the charges of driving under the influence causing serious bodily injury, driving under the influence causing damage or injury, and driving under the influence.1 Bogan alleges that these convictions violate double jeopardy. We affirm.
Under rule 9.140(b) of the Florida Rules of Appellate Procedure, a defendant who pleads guilty has no right to file a direct appeal, except when he expressly reserves the right to appeal a prior dispositive order or when he raises matters as would invalidate the plea itself. Here, Bogan pled guilty to the charges and did not reserve his right to appeal any issue. Therefore, any direct appeal on his guilty plea must be based on one of the reasons enumerated in Florida Rules of Appellate Procedure 9.140(b)(2)(A)(ii).2 Bogan’s argument based on double jeopardy is not a basis for a direct appeal because he failed to file a motion to withdraw his plea. Accordingly, we affirm without prejudice to Bogan’s right to seek collateral relief in the trial court. See Byrd v. State, 419 So. 2d 725 (Fla. 5th DCA 1982).
AFFIRMED.
SHARP, W. and PLEUS, JJ., concur. . See § 316.193; 316.193(3)(a), (b), (c), 2.; 316.193(3)(a), (b), (c), 1., Fla. Stat. (1997).
. Rule 9.140. Appeal Proceedings in Criminal Cases
(b) Appeals by Defendant.
(2) Guilty or Nolo Contendere Pleas.
(A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:
(i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo con-tendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.
(ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo conten-dere may otherwise directly appeal only
a. the lower tribunal's lack of subject matter jurisdiction;
b. a violation of the plea agreement, if preserved by a motion to withdraw plea;
c. an involuntary plea, if preserved by a motion to withdraw plea;
d. a sentencing error, if preserved; or
e. as otherwise provided by law.
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Citator
Cited By
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Vito Scarola v. State, 889 So. 2d 108 (Fla. 5th DCA 2004)…7 (Fla. 5th DCA 2001). The disposition of the error is not as clear when one considers both the rule that a double jeopardy violation is a fundamental error that may be raised for the first time on appeal, and the rule established in Bogan v. State, 852 So. 2d 444 (Fla. 5th DCA 2003). In Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984), aff'd 483 So. 2d 420 (Fla.1986) this court found a double jeopardy violation to be fundamental error; a classification that eliminates the contemporaneous objection rule…
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Dozier v. State, 881 So. 2d 662 (Fla. 3d DCA 2004)…he right to appeal, nor was the claimed error brought to the attention of the trial court by motion to correct sentencing error. See Fla. R.App. P. 9.140(b)(2)(A), (e); Williams v. State, 873 So. 2d 1248, 1249-50 (Fla. 5th DCA 2004); Bogan v. State, 852 So. 2d 444, 445 (Fla. 5th DCA 2003). The sentencing order is therefore affirmed.…
Authorities Cited
- Byrd v. State, 419 So. 2d 725 (Fla. 5th DCA 1982)
- The Colonies Condo. Ass'n, Inc. v. Clairview Holdings, Inc., 419 So. 2d 725 (Fla. 5th DCA 1982)