JAMES W. JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jackson appealed a denial of his motion to suppress evidence in a narcotics case after entering a nolo contendere plea without explicitly reserving the right to appeal the pre-trial ruling. The court clarified that a conditional plea preserving appellate rights over pre-trial rulings requires express understanding and agreement on the record, and affirmed the suppression ruling on the merits.
A defendant who enters a nolo contendere plea and wishes to appeal pre-trial rulings must make a specific reservation of that intention through express understanding, reservation, and agreement between the trial court, the state, and the defendant, reflected on the record. Jackson's plea did not satisfy this requirement. On the merits, the denial of the motion to suppress was proper and affirmed.
[1] A defendant pleading nolo contendere must make a specific reservation of the right to appeal pre-trial rulings, and the trial court and all parties must understand and ag…
[2] In the absence of an express understanding, reservation, and agreement, appeals from pre-trial rulings following a nolo contendere plea will not be accepted.
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Join FLexlaw to unlock all legal intelligence“A plea of nolo contendere admits all the facts which are well pleaded and waives all formal defects in the proceeding of which the accused could have availed himself by a plea of not guilty or motion to quash.”
Establishes the basic legal effect and consequences of a nolo contendere plea under Florida law.
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Join FLexlaw to unlock all legal intelligenceJackson was charged with a narcotics offense. Before trial, he filed a motion to suppress incriminating evidence, which was denied. Jackson then enter…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Defendant was charged with a crime, a narcotics offense. Pre-trial, defendant made a motion to suppress certain incriminating evidence, which motion was denied. The defendant did thereupon enter a plea of nolo contendere.
There are two issues.
The first issue .has to do with whether the defendant’s plea was conditional, that is to say, was there a specific reservation of his right to appeal the ruling upon his motion to suppress ?
A review of the record reveals that there was no such specific reservation. There was, simply stated in sequence, an adverse ruling, the nolo contendere plea, and the notice of appeal addressed to the pre-trial ruling in question. The defendant urges on the basis of this Court’s opinion in Ackles v. State, 270 So. 2d 39 (4th D.C.A.Fla.1972) that the foregoing reflects a sufficient conditional plea as would authorize this appeal. We have re-read the Ac-kles pronouncement and agree that, based thereon, a defendant could be so led.
However, prospectively, we wish to clarify and recede from the language projecting such notion as was expressed in Ackles v. State, supra, and place Ackles in exact accord with our understanding of earlier and current cases on the same subject.
In Chesebrough v. State, 255 So. 2d 675 (Fla.1971), the Supreme Court discussed such pleas as follows:
“The plea of nolo contendere was a formal declaration by defendant that she did not contest the charge against her. Such a plea has the same effect as a plea of guilty, so far as regards the proceeding on the information, and a defendant who is sentenced to imprisonment upon such a plea is convicted of the offense charged .... A plea of nolo contendere admits all the facts which are well pleaded and waives all formal defects in the proceeding of which the accused could have availed himself by a plea of not guilty or motion to quash. See Peel v. State, 150 So. 2d 281 (Fla.App.2d, 1963).” Id. at 676-677.
As concerns the general office of nolo con-tendere pleas, see also 9 Fla.Jur., Criminal Law § 359; 21 Am.Jur.2d, Criminal Law § 497.
However, there has grown the practice, and desirably so for good reasons, of allowing the defendant who has received an adverse pre-trial ruling to plead nolo con-tendere and specifically preserve an objection to that ruling by obtaining an agreement with the court that the plea is conditional, and such pre-trial decision may be appealed. United States v. Caraway, 474 F. 2d 25 (5th Cir. 1973); United States v. Sepe, 474 F. 2d 784 (5th Cir. 1973); Cameron v. State, 291 So. 2d 222 (4th D.C.A. Fla. 1974); Miller v. State, 285 So. 2d 41 (2d D.C.A.Fla.1973); Walker v. State, 281 So. 2d 41 (2d D.C.A.Fla.1973); see Andersen v. State, 274 So. 2d 228 (Fla.1973). In Chesebrough v. State, supra, the court held:
“The plea in the case sub judice was not conditioned on reservation of a question of law as was permitted in State v. Ash-by [Fla., 245 So. 2d 225] .... Therefore, the defendant may not question the validity of the order of the trial judge denying the motion to suppress.” Id. at 677.
And how is this specific reservation and agreement to be obtained? We feel that there should be a complete understanding among the trial court, the state and the defendant, together, of course, with counsel, as to what is intended, inasmuch as the trial court is authorized to refuse to accept such a plea, F.R.Cr.P. 3.170, 33 F.S.A.1 We hold that if a defendant pleading nolo contendere desires to appeal from pre-trial rulings, he must make specific reservation of that intention. The trial court and all concerned must understand and agree upon the record that the plea is conditional upon the appeal and its outcome.
Hereafter, in the absence of a showing of such express understanding, reservation and agreement, it will be our purpose and expectation to decline to accept appeals in cases such as these.
Secondly, we look to the merits of this appeal. We have considered the point presented by the defendant in light of the record and advice of counsel and are of the opinion that there is a sufficient predicate in fact and law for the trial court decision to deny the defendant’s motion to suppress.
Affirmed.
WALDEN, and DOWNEY, JJ., and KNOTT, JAMES R., Associate Judge, concur. . SVR.Gr.P. 3.170(a), 33 F.S.A.; “A defendant may plead not guilty, guilty, or, with the consent of the Court, nolo contendere . . ..”
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Citator
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Taylor v. State, 355 So. 2d 180 (Fla. 3d DCA 1978)…ely as to that issue because it was properly preserved in the trial court and a resolution thereof is dispositive of the case. State v. Ashby, 245 So. 2d 225, 228 (Fla.1971); Tiller v. State, 330 So. 2d 792, 793 (Fla.1st DCA 1976); Jackson v. State, 294 So. 2d 114 (Fla.4th DCA 1974). The central question presented for review is whether a free and voluntary consent to conduct a warrantless search of a boat may be obtained by a law enforcement officer from the boat’s owner after [*182] such officer has begun a…
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Brown v. State, 355 So. 2d 138 (Fla. 3d DCA 1978)…(Fla.2d DCA 1976); Tiller v. State, 330 So. 2d 792 (Fla.1st DCA 1976); Stanley v. [*140] State, 327 So. 2d 243 (Fla.2d DCA 1976); Wallace v. State, 321 So. 2d 97 (Fla.4th DCA 1975); Perry v. State, 296 So. 2d 505 (Fla.3d DCA 1974); Jackson v. State, 294 So. 2d 114 (Fla.4th DCA 1974). There is one essential limitation to the Ashby nolo rule applicable herein and that is the rule cannot be used by a defendant when the legal question on which he seeks appellate review is not dispositive of the case. With regard…
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Eisenman v. State, 320 So. 2d 34 (Fla. 4th DCA 1975)…this appeal. A review of the record fails to reflect defendant’s specific reservation of his right to appeal the ruling on his motion to suppress. Accordingly, upon the authority of and for those reasons expressed in Jackson v. State, Fla.App. 1974, 294 So. 2d 114, the appeal does not lie. However, it might be gratuitously observed that had the court reached the merits of this, appeal, namely, whether the cocaine found in defendant’s briefcase as a result of an airport security inspection was obtained throug…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Ashby, 245 So. 2d 225 (Fla. 1971)
- Chesebrough v. State, 255 So. 2d 675 (Fla. 1971)
- Peel v. State, 150 So. 2d 281 (Fla. 2d DCA 1963)
- United States v. Florencio Sepe, 474 F.2d 784 (5th Cir. 1973)
- Andersen v. State, 274 So. 2d 228 (Fla. 1973)
- United States v. Caraway, 474 F.2d 25 (5th Cir. 1973)
- Ackles v. State, 270 So. 2d 39 (Fla. 4th DCA 1972)
- Cameron v. State, 291 So. 2d 222 (Fla. 4th DCA 1974)
- Walker v. State, 281 So. 2d 41 (Fla. 2d DCA 1973)
- Miller v. State, 285 So. 2d 41 (Fla. 2d DCA 1973)