KEVYN TERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed conviction where appellant who entered nolo contendere plea failed to reserve the right to appeal the trial court's denial of his motion for continuance, which was not a dispositive order.
A defendant who pleads nolo contendere and does not expressly reserve the right to appeal cannot challenge the denial of a motion for continuance on appeal because such an order is not dispositive.
[1] A defendant who pleads guilty or nolo contendere must expressly reserve the right to appeal a prior non-dispositive order of the trial court, identifying with particulari…
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Join FLexlaw to unlock all legal intelligenceKevyn Terry pleaded nolo contendere to charged offenses and appealed the trial court's denial of his unopposed motion for a continuance.…
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In this direct appeal, Appellant, Kevyn Terry, argues that the trial court erred in denying his unopposed motion for a continuance. Notwithstanding the State’s concession of error, we affirm. Appellant, who pled nolo contendere to the charged offenses, did not reserve the right to appeal the denial of his motion for a continuance, and the order denying his motion was not dispositive. See Fla. R. App. P. 9.140(b)(2)(A)(i) (providing that a defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved); Williams v. State, 134 So.3d 975, 976 (Fla. 1st DCA 2012) (holding that although the appellant reserved the right to challenge the competency order on appeal, the order was not legally dispositive and was, therefore, not cognizable on appeal); M.N. v. State, 16 So.3d 280, 281 (Fla. 2d DCA 2009) (en banc) (affirming the order placing the appellant on. probation, which wás entered pursuant to a nolo contendere plea, because the challenged order on the appellant’s motion to continue was not disposi-tive).1
AFFIRMED.
MARSTILLER, J., concurs.
BENTON, J., dissents with opinion.
dissenting.
I would accept the state’s concession of error in this case, which involved the denial of an initial motion for continuance filed by replacement counsel who had actually made an appearance in the case. See generally Madison v. State, 132 So.3d 237, 239 (Fla. 1st DCA 2013) (reversing for failure to grant a successive motion for continuance where “replacement counsel had [reportedly] agreed to take Madison’s case if *114the continuance was granted”). The state’s brief asserts not only that denial of the motion for continuance was an abuse of discretion but also that appellant’s “plea was not voluntary.”
BENTON, J.,
dissenting.
I would accept the state’s concession of error in this case, which involved the denial of an initial motion for continuance filed by replacement counsel who had actually made an appearance in the case. See generally Madison v. State, 132 So. 3d 237, 239 (Fla. 1st DCA 2013) (reversing for failure to grant a successive motion for continuance where “replacement counsel had [reportedly] agreed to take Madison’s case if the continuance was granted”). The state’s brief asserts not only that denial of the motion for continuance was an abuse of discretion but also that appellant’s “plea was not voluntary.”
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Kevyn L. Terry v. State, 221 So. 3d 786 (Fla. 1st DCA 2017)…his motion for continuance.. This Court affirmed the judgment, and sentence, holding that Appellant had failed to preserve for appeal the denial of his motion for continuance and that the order denying his motion was not dispositive. Terry v. State, 149 So. 3d 113, 113 (Fla. 1st DCA 2014). Armed with this decision, Appellant then moved for postconviction relief, claiming that his trial counsel rendered ineffective assistance by assuring him- that the denial of the motion for continuance was a dispos-itive is…
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Markae Devontae Massey v. State (Fla. 1st DCA 2021)…may only appeal an issue after a guilty plea if the issue is expressly reserved and dispositive. Fla. R. App. P. 9.140(b)(2)(A)(i). Appellant did not expressly reserve the right to appeal the denial of the motion to continue. See Terry v. State, 149 So. 3d 113 (Fla. 1st DCA 2014). Appellant asserts he implicitly reserved the right to appeal what must be a dispositive issue. Even if the issue had been preserved, we would affirm. The denial of a motion to continue will not be reversed absent a “palpable…
Authorities Cited
- M.N. v. State, 16 So. 3d 280 (Fla. 2d DCA 2009)
- Madison v. State, 132 So. 3d 237 (Fla. 1st DCA 2013)
- Renard Nealie Williams v. State, 134 So. 3d 975 (Fla. 1st DCA 2012)