RALPH WALDO EMERSON, IV VS STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Nos. 1D21-1543 1D21-1544 1D21-1545 1D21-1546 1D21-1547 _____________________________

RALPH WALDO EMERSON IV,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Escambia County. Thomas V. Dannheisser, Judge.

June 28, 2023

WINOKUR, J.

Ralph Waldo Emerson IV, appeals his sentence for multiple charges, including attempted first-degree murder, after pleading nolo contendere. Emerson argues that the trial court committed fundamental error by failing to conduct a competency hearing and by failing to enter a final order determining he was competent before sentencing him. To the extent he is claiming that his sentence was erroneous, he failed to preserve this issue for appellate review, irrespective of his claim that the error was fundamental. Accordingly, we affirm the judgment and sentence.

Fla. R. App. P. 9.140(b)(2)(A)(ii). None of these circumstances describe Emerson’s claim on appeal. Because a defendant “may not appeal” from a no contest plea unless it involves “only” one of these grounds, Emerson is not entitled to appellate relief. The supreme court reached a similar conclusion in State v. Dortch, 317 So. 3d 1074 (Fla. 2021). The trial court in Dortch failed to hold a hearing on the petitioner’s competency and failed to make

1 In his initial brief, Emerson argues that the trial court’s failures constitute fundamental error, asking us to reverse his “convictions and sentence” and to remand for a competency hearing. Emerson did not argue that Dortch did not apply to his case because he was only challenging the sentence until his reply brief. Emerson altered his request of this court in the reply brief: instead of asking us to reverse his “convictions and sentence,” he asked us only to reverse his “sentencing judgment.” This argument was not in response to any claim in the State’s answer brief, as the State confessed error and never cited Dortch either. New arguments asserted in a reply brief that were not raised in the initial brief are waived. Truehill v. State, 358 So. 3d 1167, 1186 n.12 (Fla. 2022). See also Johnson v. State, 135 So. 3d 1002, 1033 (Fla. 2014). While we could reject Emerson’s claim on this basis alone, we will address it due to the similarity of the argument to that made in the initial brief.

AFFIRMED.

M.K. THOMAS and TANENBAUM, JJ., concur.

2 Even if we did not rely on Brannon to reject Emerson’s argument, rule 9.140(b)(2)(A) would still foreclose relief. At best, Emerson is proceeding under subdivision (b)(2)(A)(ii)d., which permits a defendant pleading no contest to appeal “a sentencing error,” in that he is claiming that the sentence was illegally entered while a competency claim remained pending. Like subdivision (b)(2)(A)(ii)c., at issue in Dortch, subdivision (b)(2)(A)(ii)d. permits appeal only if the error is “preserved.” The reasoning of Dortch applies equally to a claim that a sentence following a no-contest plea is erroneous. As there is “no fundamental-error exception to the preservation requirement of rule 9.140(b)(2)(A)(ii)c.,” Dortch, 317 So. 3d at 1084, there is likewise no fundamental-error exception to the preservation requirement of rule 9.140(b)(2)(A)(ii)d.

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Michael Ufferman, Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Ashley Moody, Attorney General, Miranda L. Butson, Christina Piotrowski, and Sharon S. Traxler, Assistant Attorneys General, Tallahassee, for Appellee.