EDWIN HUMPHREY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the judgment and sentence because the defendant failed to preserve the issue of the voluntariness of his plea and the motion to suppress was not dispositive.
[1] A defendant who pleads nolo contendere, reserving the right to appeal the denial of a motion to suppress, cannot appeal that denial without a trial court determination th…
[2] An appellate court may determine whether a motion was dispositive for purposes of appeal in the interest of judicial economy.
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Join FLexlaw to unlock all legal intelligenceEdwin Humphrey pleaded nolo contendere to carjacking, kidnapping, and armed robbery, reserving the right to appeal the denial of his motion to suppres…
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KELLY, Judge.
Edwin Humphrey pleaded nolo contendere to carjacking, kidnapping, and armed robbery, reserving the right to appeal the denial of his motion to suppress his confession. The trial court never determined whether the motion was disposi-tive. In this appeal, Humphrey acknowledges that in the absence of such a finding, he cannot appeal the denial of his motion to suppress. He contends that as a result, he did not get the “benefit” he bargained for when he entered his plea and requests that we remand the case to the trial court with instructions that it either find the motion dispositive or allow him to withdraw his plea.
Although typically it is the trial court’s duty to determine whether an issue is dispositive of the case for purposes of the right to appeal, Moore v. State, 647 So. 2d 326 (Fla. 2d DCA 1994); Everett v. State, 535 So. 2d 667 (Fla. 2d DCA 1988), this court has on occasion in the interest of judicial economy made that determination itself. In this case, it is evident that Humphrey’s motion was not dispositive, and he virtually concedes as much in his brief. Accordingly, we affirm Humphrey’s judgment and sentence.
Humphrey next contends that we should direct the trial court to allow him to withdraw his plea. However, Humphrey failed to preserve the issue of the volun- tariness of his plea by filing a motion to withdraw his plea in the trial court.1 See Ruff v. State, 840 So. 2d 1145 (Fla. 5th DCA 2003). Accordingly, Humphrey’s only recourse is to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 challenging the voluntariness of his plea.
Affirmed.
SILBERMAN, J., Concurs in result only.
NORTHCUTT, J., Concurs.
. While this appeal was pending, it appears Humphrey attempted to preserve this issue by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), asking the trial court to either find his motion dispositive or allow him to withdraw his plea. This motion was not the proper vehicle to preserve the issue of the voluntariness of his plea. Cf. Gafford v. State, 783 So. 2d 1191 (Fla. 1st DCA 2001).
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Timmons v. State, 961 So. 2d 378 (Fla. 4th DCA 2007)…. State, 913 So. 2d 1203 (Fla. 4th DCA 2005), even though the trial court inadvertently failed to announce its dis-positive nature, although requested to do so by defense counsel. Hawk v. State, 848 So. 2d 475 (Fla. 5th DCA 2003); Humphrey v. State, 909 So. 2d 938 (Fla. 2d DCA 2005).…
Authorities Cited
- Gafford v. State, 783 So. 2d 1191 (Fla. 1st DCA 2001)
- Ruff v. State, 840 So. 2d 1145 (Fla. 5th DCA 2003)
- Everett v. State, 535 So. 2d 667 (Fla. 2d DCA 1988)
- Moore v. State, 647 So. 2d 326 (Fla. 2d DCA 1994)