ADRIAN GORE

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ Case No. 5D2023-2807 LT Case No. 2022-CF-001037 _____________________________ ADRIAN GORE, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. London M. Kite, Judge. Matthew J. Metz, Public Defender and Zachary Wiseman, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, and Kristie Regan, Assistant Attorney General, Tallahassee, for Appellee. January¹⁷, 2025

PER CURIAM.

AFFIRMED.

WALLIS and KILBANE, JJ., concur. PRATT, J., concurs, with opinion.

I.

Rule 9.140 of the Florida Rules of Appellate Procedure narrowly circumscribes a defendant’s ability to appeal from a guilty or nolo contendere plea. The rule authorizes pleading 1 Gore and the State both assert that a Quarterman agreement is at issue in this appeal, and neither party contends that Gore’s deferred-sentencing arrangement can be categorized as anything other than a Quarterman agreement. See Quarterman v. State, 527 So. 2d 1380 (Fla. 1988). However, as I explain in this opinion, our disposition does not turn on whether Gore’s deferredsentencing arrangement is a Quarterman agreement; no matter how we characterize it, we must affirm. Therefore, I do not address whether Gore’s arrangement complies with Quarterman.

A.

Typically, when pleading defendants argue on appeal that their sentence exceeds the bargained-for range, it’s clear which provision of Rule 9.140 applies: Rule 9.140(b)(2)(a)(ii)b. As we have held, “an issue concerning a sentence which exceeds the terms contained in a plea agreement . . . is a violation of the plea agreement which must be raised through a motion to withdraw.” Williams v. State, 873 So. 2d 1248, 1249 (Fla. 5th DCA 2004); see also Angulo v. State, 857 So. 2d 355, 356 (Fla. 5th DCA 2003) (“[I]ssues regarding the violation of a plea agreement . . . must be preserved by a motion to withdraw the plea.”). But what about pleading defendants who, like Gore, entered deferred-sentencing arrangements and then received a beyondrange sentence for willfully failing to appear? They might make two arguments. First, they might argue that the court was bound to the sentencing range specified in the plea agreement because their deferred-sentencing arrangement is unenforceable. This argument treats the deferred-sentencing arrangement as a nullity and alleges a simple violation of the plea agreement. Therefore, it is subject to Rule 9.140(b)(2)(a)(ii)b’s preservation requirement. Second, they might accept the enforceability of their deferredsentencing arrangement (i.e., they might concede that the

Our court repeatedly has adhered to this understanding of Quarterman. For example, in Bennett v. State, we observed, “Quarterman held that a court could impose a departure sentence for the failure to appear where the release and its conditions were part of the plea agreement and where the defendant agreed to the imposition of the departure sentence if he did not appear as ordered,” and we described the defendant’s Quarterman’s release as “a valid modification of the plea agreement.” 858 So. 2d 1251, 1252, 1253 (Fla. 5th DCA 2003) (emphasis added). In Smith v. State, we again described Quarterman as having held that, “where a furlough and an enhanced sentence for failure to appear in court at a later time are part of the plea agreement, a court is justified in imposing the enhanced sentence after the defendant fails to appear in court, without giving him an opportunity to withdraw his plea.” 988 So. 2d 1258, 1261 (Fla. 5th DCA 2008) (emphasis added). And more recently, in Ingram v. State, we recited that at the defendant’s “change of plea hearing, the trial court granted his

that the term carries the same meaning in both rules. See, e.g., Jackson v. State, 983 So. 2d 562, 569 (Fla. 2008) (“If the error is not a ‘sentencing error,’ however, then rules 3.800(b) and 9.140(e) do not apply.”); id. at 570 (“clarifying the definition of ‘sentencing error’ for purposes of rules 3.800(b) and 9.140(e)”); id. at 571 (“[W]e adopted rule 9.140(d), Florida Rules of Appellate Procedure (now rule 9.140(e)), requiring that sentencing errors be preserved either through a contemporaneous objection or by motion under rule 3.800(b).”).

Our court is not alone in characterizing enforceable deferredsentencing arrangements as plea agreement provisions. The First District understands Quarterman to have “held that plea agreements may contain [certain] conditions.” Mack v. State, 955 So. 2d 51, 54 (Fla. 1st DCA 2007); see also id. at 54 n.1 (describing Quarterman provisions as “Quarterman plea agreements” and a “condition in the plea agreement”). So does the Second District. As that court has explained:

The plea agreement under which the defendant is released is essentially a civil contract. In consideration for the privilege to remain free, the defendant agrees that if he does not appear for sentencing at the agreed upon time and place, the trial court can sentence the defendant to any lawful sentence even if it is a sentence in excess of the sentence specified in the negotiated plea agreement. Under the original sentencing guidelines, such an agreement required the defendant to agree that he or she would allow the judge to impose an upward departure sentence based on the defendant’s failure to appear for sentencing. This practice was approved in Quarterman and thus the agreement became known as a Quarterman agreement.

Neeld v. State, 977 So. 2d 740, 743 (Fla. 2d DCA 2008); see also id. at 741 (using the term “Quarterman plea agreement”).

In sum, under both our precedent and the Florida Supreme Court’s Quarterman decision itself, as our court and others have construed it, deferred-sentencing arrangements—when they are Quarterman-compliant and enforceable—are amendments to the plea agreement. They act as a kind of proviso, specifying that because the defendant has bargained for a period of pre-sentencing liberty, the agreed sentencing range will not apply if the defendant

B.

All this poses a problem for Gore, who has filed no motion to withdraw his plea. On its face, Rule 9.140(b)(2)(A)(ii)b. requires such a motion to preserve plea-agreement violations for appeal, and it contains no exception to that preservation requirement. As our court has held, “an issue concerning a sentence which exceeds the terms contained in a plea agreement . . . is a violation of the plea agreement which must be raised through a motion to withdraw.” Williams, 873 So. 2d at 1249; see also Angulo, 857 So. 2d at 356. Even so, Gore asserts that he should be entitled to proceed with his unpreserved appeal because, as his initial brief puts it, “[c]ourts have previously held that such [willfulness] issues can be reviewed even without a motion to withdraw the plea being filed with the trial court.” This succinct assertion does not come to terms with our precedent, which has excused noncompliance with Rule 9.140(b)(2)(A)(ii)b. only where the record facially shows ineffective assistance of counsel.

Our court first announced this exception in Barber v. State, 901 So. 2d 364 (Fla. 5th DCA 2005). In Barber, the defendant was sentenced more harshly than his plea agreement contemplated after he failed to appear for his sentencing hearing. Id. at 364–65. He did not move to withdraw his guilty plea. Instead, after he noticed his appeal, he filed a motion to correct his sentence under Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure. Id. at

9 365. That post-appeal motion “specifically alleged that there was no Quarterman agreement between the State and Mr. Barber.” Id. (footnote omitted). The sentencing court dismissed the motion as untimely, and the appeal resumed. Id. While we agreed with the sentencing court that Rule 3.800 afforded Barber no relief, we nonetheless found merit in the dismissed motion’s allegation. “The transcript and the written plea agreement reflect that there was, in fact, no express [Quarterman] agreement concerning the consequences attendant upon the failure of Mr. Barber to appear at sentencing.” Id.

Even though Rule 9.140 made a motion to withdraw plea “the proper method” for Barber “to seek relief,” id., our court noted the unavailability of relief under Rule 3.800(b). Id. at 366. We called the combined effect of the two procedural rules “particularly unsatisfactory in the present case because the State candidly acknowledge[d]” that Barber should have been afforded an opportunity to withdraw his plea. Id. The State combined its concession with an invitation for us to “remand to provide Mr. Barber with the opportunity to withdraw his plea or accept the sentence.” Id. We thought that such a remand “would offend the bounds of our jurisdiction.” Id. Nonetheless, “in the interest of judicial economy,” we opined, “it makes no sense to affirm the judgment and sentence without prejudice to the right of the appellant to seek relief pursuant to Rule 3.850, particularly when the error is so obvious that it is conceded by the State.” Id.

Without pointing to any language in the applicable procedural rules—and, indeed, having stated that we found their combined effect “particularly unsatisfactory” and that it “ma[de] no sense” to apply them, id.—Barber built on the State’s concessions and fashioned its own revision. “One way to accomplish this result,” we proffered, “is to consider whether the failure to move to withdraw the plea at the trial level establishes on its face that Mr. Barber’s counsel was ineffective.” Id. “If the record on its face reflects the merit of a claim of ineffective assistance of trial counsel,” we postulated, “then we may consider this issue on direct appeal.” Id. Having crafted this exception, we then posited that no conceivable defense tactic could have underpinned Barber’s counsel’s failure to file a motion to withdraw plea. Id. Therefore, we concluded that counsel had rendered ineffective assistance meeting both prongs of

10 the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Id. We reversed and remanded for the defendant to be given the choice whether to withdraw his plea or accept the sentence that the court had pronounced. Id.

C.

Our court has twice applied the ineffective-assistance exception that Barber announced, granting relief on a pleaagreement violation claim notwithstanding the pleading defendant’s failure to file a motion to withdraw plea. In both cases, we reiterated that the Barber exception applies only where the record facially shows ineffective assistance of counsel. See Diggs v. State, 12 So. 3d 864, 865 (Fla. 5th DCA 2009) (“Although Diggs’ [pro se] motion to withdraw his plea was a nullity, because the face of the record reflects the merit of an ineffective assistance of counsel claim, we have the jurisdiction to consider the issue he raises on appeal.”); Smith, 988 So. 2d at 1260 (observing that, where a defendant appeals from a guilty or nolo contendere plea without first filing a motion to withdraw his plea, notwithstanding the text of Rule 9.140(b)(2)(A)(ii)b., “jurisdiction may still exist where the record on its face establishes ineffective assistance of trial counsel”).⁴

4 Barber’s, Smith’s, and Diggs’s focus on “jurisdiction” appears to conflate jurisdiction with preservation. As its text makes clear, Rule 9.140(b)(2)(A)(ii)b. erects a preservation requirement rather than a jurisdictional one. Any exception to this requirement likewise must go to preservation rather than to jurisdiction. To say that we have “jurisdiction” to entertain an appeal does not speak to whether the defendant preserved the issue that he appeals; jurisdiction and preservation are distinct concepts, and a defendant’s failure to preserve a claim does not divest us of jurisdiction to adjudicate his appeal. See, e.g., Leonard v. State, 760 So. 2d 114, 117–18 (Fla. 2000); Fluhart v. Rasmussen, 383 So. 3d 889, 889–90 (Fla. 5th DCA 2024) (en banc) (concluding that we had jurisdiction and affirming because the appellant failed to preserve her argument on appeal).

5 Defendants finding themselves in Gore’s position might object that a motion to withdraw plea will at best amount to an ineffective formality, and at worst might risk their plea bargain. I recognize the unlikelihood that a sentencing court would grant a defendant’s motion to withdraw his plea after determining that his failure to appear was willful. This case does not present a vehicle to decide what the appropriate remedy would be in such a scenario. For present purposes, it suffices to note that it is not a foregone conclusion that the defendant forfeits his plea bargain merely by filing the motion that Rule 9.140 requires to preserve his pleaagreement violation claim. See Hunt v. State, 613 So. 2d 893, 898 (Fla. 1992) (per curiam) (“When an agreement with the defendant has not been fulfilled, the defendant is entitled to specific

12

We also have stated that, “[t]he issue of whether a Quarterman violation was willful is reviewable on direct appeal.” Cruz, 303 So. 3d at 287 n.3. However, for three reasons, that generic truism should not be read to stray beyond Barber and dispense with Rule 9.140’s plea-withdrawal requirement beyond the circumstance that Barber and its progeny addressed. First, whether an issue is reviewable—i.e., cognizable on appeal—is distinct from the issue whether it’s preserved. Second, and more important, Cruz did not mention whether the defendant in that case had moved to withdraw her plea. Therefore, it did not hold that filing a motion to withdraw plea was unnecessary to preserve the appellant’s claim. Much less did it hold that such a motion is unnecessary where ineffective assistance does not appear on the face of the record. Third, for its general statement that a defendant’s Quarterman willfulness challenge is reviewable on appeal, Cruz cited Peacock v. State, 77 So. 3d 1285 (Fla. 4th DCA 2012), which, properly understood, simply stands for the same proposition that Barber does. While Peacock “reject[ed] the State’s argument that [the defendant’s willfulness challenge] cannot be reviewed on direct appeal because [the] appellant did not file a motion to withdraw plea,” it relied on precedent holding that a motion to withdraw plea is unnecessary for preservation where “ineffective assistance of counsel [is] established on [the] face of the record.” Id. at 1287–88 (citing Lowery v. State, 22 So. 3d 745, 747–49 (Fla. 2d DCA 2009)).

D.

In sum, binding precedent compels the conclusion that Gore’s attack on his sentence alleges a plea-agreement violation rather than a sentencing error. Therefore, Gore’s appeal is governed by Rule 9.140(b)(2)(A)(ii)b., which requires a motion to withdraw plea

performance of the unfulfilled promise or to withdrawal of her guilty plea.”). And indeed, nothing in Rule 9.140 or the procedural rule governing plea withdrawals precludes the filing of a motion under protest that reserves the defendant’s right to appeal the court’s willfulness finding and seek specific performance of his plea agreement. See Fla. R. Crim. P. 3.170(f), (l).

II.

Barber provides Gore’s only hope, as it pronounced our court’s lone exception to the preservation requirement of Rule 9.140- (b)(2)(A)(ii)b. However, while Barber and its progeny excused noncompliance with this duty to preserve in the proceedings below, they did not announce any exception to our precedent generally requiring appellate preservation—the duty of the appellant to raise his assignments of error in his initial brief. See, e.g., Johnson v. Wal–Mart Stores E., LP, 389 So. 3d 705, 713 n.4 (Fla. 5th DCA 2024) (noting that “it is not our function to rebrief an appeal” and “we have no authority to . . . reformulate a party’s argument on their behalf”); Calabrese v. State, 325 So. 3d 938, 942 (Fla. 5th DCA 2021) (“Furthermore, Calabrese did not raise a claim of fundamental error relating to this determination in his initial brief. Consequently, this claim of error has been waived for appellate review, and this Court is not required to undertake a fundamental error analysis on Calabrese’s behalf.”); see also D.H. v. Adept Cmty. Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018) (Canady, J., dissenting) (“This requirement of specific

6 Quarterman certainly did not address—and could not have addressed—Rule 9.140(b)(2)(A)(ii)b., because that provision was not promulgated until eight years after the Quarterman decision. See Amends. to the Fla. Rules of App. Proc., 696 So. 2d 1103, 1107, 1130 (Fla. 1996), as corrected on denial of reh’g (Dec. 26, 1996).

In his initial brief, Gore contends—in a single sentence, with a citation only to the Fourth District’s Peacock decision—that a motion to withdraw his plea is unnecessary to proceed with his appeal. He provides no argument why we should conclude that his counsel rendered ineffective assistance by failing to file a motion to withdraw his plea, let alone why this conclusion indisputably follows from the face of the record. Indeed, he does not even acknowledge that our precedent requires such a showing. Because Gore does not attempt to establish the predicate on which the Barber exception turns, his initial brief fails to raise and preserve any such argument and thus fails to carry Gore’s burden to demonstrate reversible error.

7 Barber’s focus on ineffective assistance appearing “on the face of the record” at least superficially calls to mind our role in reviewing appeals under the framework of Anders v. California, 386 U.S. 738 (1967). Compare State v. Causey, 503 So. 2d 321, 322 (Fla. 1987) (under Anders, “the appellate court must examine the record to the extent necessary to discover any errors apparent on the face of the record”). However, Barber did not state that the appellant’s counsel had failed to present an argument for avoiding the preservation requirement of Rule 9.140(b)(2)(A)(ii)b. Therefore, we should not read between Barber’s lines to uncover an unannounced exception to the normal party-presentation rules of appellate preservation. Our reviewing court looks only to the face of our opinions to determine our holdings, and we should do the same. Cf. Perlow v. Berg–Perlow, 875 So. 2d 383, 387 (Fla. 2004) (noting that facts that “do not appear on the face of” an appellate opinion “cannot be used in determining whether there is a conflict” with other appellate opinions); Hardee v. State, 534 So. 2d 706, 708 (Fla. 1988) (“[F]or purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion.”).

III.

Putting aside Gore’s failure to establish a foothold in Barber, Smith, and Diggs—the only precedent of our court that might excuse his failure to withdraw his plea—those decisions would offer him no help in any event, as two recent Florida Supreme Court decisions have abrogated them.

A.

In State v. Dortch, 317 So. 3d 1074 (Fla. 2021), the Florida Supreme Court examined Florida Appellate Rule 9.140(b)(2)(A)- (ii)c. The text of that provision is materially identical to that of Rule 9.140(b)(2)(A)(ii)b. Just as with appeals of plea-agreement violations, the provision authorizes appeals of involuntary pleas “if preserved by a motion to withdraw plea.” Fla. R. App. P. 9.140(b)- (2)(A)(ii)c. The Fourth District had pronounced a fundamentalerror exception to this preservation requirement, concluding “it was not necessary for Dortch to file a motion to withdraw plea before pursuing a direct appeal.” Dortch, 317 So. 3d at 1078.

The Florida Supreme Court quashed the Fourth District’s decision and affirmed Dortch’s sentence, holding “that there is no fundamental-error exception to the preservation requirement of Rule 9.140(b)(2)(A)(ii)(c).” Id. at 1084. It began by observing that “a defendant has no constitutional due process right to the correction of unpreserved error,” that “[c]ourts developed the

After rejecting several of Dortch’s arguments to the contrary, the Court turned to his contention “that applying the rule’s preservation requirement in these circumstances would be unjust.” Id. at 1084. While voicing some sympathy for that concern, the Court concluded that “this argument does not supply a reason why we would be authorized to depart from the governing law as we have explained it.” Id. Furthermore, Dortch’s proposed revision of the rule would undermine the positive values that the rule serves: “clarity and finality” in bargained-for sentences. Id. Finally, the Court rejected Dortch’s injustice premise, concluding that “the rule is fair, particularly because the accompanying rule on motions to withdraw a plea gives defendants ample opportunity to seek relief from error before pursuing an appeal.” Id.

B.

Several months after it decided Dortch, in Steiger v. State, 328 So. 3d 926 (Fla. 2021), the Florida Supreme Court considered “whether appellate courts may address the merits of an unpreserved claim of ineffective assistance of trial counsel on direct appeal, absent an allegation of fundamental error.” Id. at 929. The Court held “that section 924.051(3), Florida Statutes (2020), which prohibits raising an unpreserved claim of error on

The Court specifically disapproved two decisions by the Second and Fourth Districts because they “reviewed and granted relief based on unpreserved claims of ineffective assistance of trial counsel” by “reasoning that the ineffective assistance of counsel was apparent on the face of the record and that it would be a waste of judicial resources to not grant relief.” Id. at 928–29, 932 (Fla. 2021) (emphasis added), receding from Monroe v. State, 191 So. 3d 395 (Fla. 2016), and disapproving Howard v. State, 288 So. 3d 1239 (Fla. 2d DCA 2020), and Kruse v. State, 222 So. 3d 13 (Fla. 4th DCA 2017).

C.

Taken together, Dortch and Steiger have left nothing of the ineffective-assistance exception that Barber and its progeny pronounced. Construing a neighboring provision of the same appellate rule with a word-for-word identical preservation requirement, Dortch made clear that where Rule 9.140 requires a motion to withdraw plea to preserve a claim, it means what it says. And Steiger made clear that we may countenance unpreserved ineffective-assistance claims on direct appeal only under the stringent rubric of fundamental error. In particular, Steiger disapproved the judicial-economy rationale that courts had used to justify their review of unpreserved ineffective-assistance claims. Because it permitted an exception to a categorical plea-withdrawal requirement within Rule 9.140—and because it countenanced an unpreserved ineffective-assistance claim under the Strickland standard rather than the more demanding fundamental-error

I am not the first to recognize the abrogating impact of these intervening Florida Supreme Court decisions. A panel of the Second District already has done so, holding that Dortch and Steiger abrogated its prior precedent that, like Barber, had allowed unpreserved appeals of guilty pleas with no motion to withdraw where ineffective assistance of counsel appeared on the face of the record. See Melendez v. State, 339 So. 3d 498, 501 (Fla. 2d DCA 2022). In fact, the very decision that the Melendez panel declared defunct had relied on Barber and its progeny. See id. (recognizing abrogation of Lowery v. State, 22 So. 3d 745, 747 (Fla. 2d DCA 2009)); see also Lowery, 22 So. 3d at 747–48 (extensively relying on our precedent in Smith, 988 So. 2d at 1260–61, and Barber, 901 So. 2d at 364).

As a panel, we have the authority to follow the Second District’s lead, recognize the abrogating effect of Dortch and Steiger, and declare Barber, Smith, and Diggs a dead letter. See, e.g., Rivera v. Hammer Head Constr. & Dev. Corp.,¹⁴ So. 3d 1190, 1191 (Fla. 5th DCA 2009) (panel decision recognizing that intervening Florida Supreme Court precedent abrogated prior decision of our court); Summers v. State, 747 So. 2d 987, 988–89 (Fla. 5th DCA 1999) (same); see also Carter v. State, 747 So. 2d 483, 484 (Fla. 5th DCA 2000) (reiterating Summers’s abrogation holding). Had Gore adequately briefed his appeal and offered an argument why his case fits within the Barber rubric, he would have found only a dead end.

8 As I explain above, our court’s decisions in Cruz, Smith, and Bennett did not remove Quarterman willfulness challenges from the Barber rubric and categorically exempt them from Rule 9.140’s plea-withdrawal requirement. But even if they (or any other decision of our court) had announced such a sweeping holding, Dortch and Steiger would abrogate them for the same reasons they abrogate Barber.

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D.

Barber’s demise should not surprise, as that decision claimed a power that our court does not possess. Our state constitution confers on the Florida Supreme Court the authority to “adopt rules for the practice and procedure in all courts,” including rules of appellate procedure like Rule 9.140. See Art. V, § 2(a), Fla. Const.; see also Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991) (describing the Florida Supreme Court’s “exclusive authority to regulate” court practice and procedure). We have no license to set those rules aside, even when we might deem them “particularly unsatisfactory,” might think they disserve “the interest of judicial economy,” or might fail to appreciate their wisdom. Barber, 901 So. 2d at 366; see id. (asserting that applying the procedural rules in that case would “make[ ] no sense”). Barber announced an entitlement “to accomplish this result,” id., but nowhere does our constitution empower the district courts of appeal to carve out exceptions from the procedural rules that our reviewing court promulgates. We never should have purported to wield such a prerogative. In any event, Dortch and Steiger now require us to relinquish it, and to retreat from our encroachment on the Florida Supreme Court’s “exclusive authority,” Kirian, 579 So. 2d at 732, to craft the rules of appellate procedure, including Rule 9.140. In an appropriate future case, our court should do so and return to the plain text of that rule. See Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021) (reiterating adherence to “the supremacyof-the-text principle”).

* * *

For the foregoing reasons, binding precedent and the plain text of Rule 9.140 require us to reject Gore’s unpreserved pleaagreement violation claim. Therefore, I concur in the panel’s decision to affirm.