ROBERT JACKSON RECE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant charged with drug possession sought to plead nolo contendere while reserving his right to appeal the trial court's suppression ruling. The trial judge refused the nolo contendere plea and instead accepted a guilty plea with a reservation to appeal. The appellate court affirmed, finding that while the trial court erred in refusing the nolo contendere plea, the error was harmless because the suppression issue was meritless.
A defendant may permissibly plead nolo contendere with a reservation to appeal the legality of evidence seized, as recognized in State v. Ashby. However, a guilty plea (as opposed to nolo contendere) waives all non-jurisdictional defects including suppression issues. The trial court's refusal to accept the nolo contendere plea constituted error, but that error was harmless because the suppression issue on appeal lacked merit.
[1] A defendant may plead nolo contendere, conditioned on the reservation of the right to appellate review of the legality of evidence seized.
[2] A voluntary plea of guilty in a criminal case waives all defects other than jurisdiction.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A different result would obtain if the plea was one of guilty rather than nolo contendere.”
Establishes the critical legal distinction that guilty pleas waive suppression issues while nolo contendere pleas may not, from State v. Ashby
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Join FLexlaw to unlock all legal intelligenceRobert Jackson Rece was charged with possession of controlled substance with intent to sell or deliver under Florida law. He attempted to enter a plea…
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ALDERMAN, Judge.
Appellant, the defendant below, was charged with possession of controlled substance with intent to sell or deliver in violation of Section 893.13(l)(a) 2, Florida Statutes (1975). He attempted to enter a plea of nolo contendere, reserving the right to appeal the trial court’s denial of his motion to suppress evidence. The trial judge refused to accept his plea of nolo contendere, but stated:
“I will accept the guilty plea in this case on the condition subsequent that the defendant reserves the right to have the Appellate Court review some pre-trial ruling of this Court relating to suppression of evidence. I think that is only fair that the questions of law by the trial court be reviewed by the Appellate Court; yet the practice ought to be flexible enough for the man to accept the plea for trial purposes, and if the Appellate Court doesn’t agree, I will state I don’t feel that I have misled the defendant in that if he can’t have his appeal on the suppression of evidence heard, he can re serve his right to withdraw his plea later.”
The case of State v. Ashby, 245 So. 2d 225 (Fla.1971) recognized that a defendant could be permitted to plead nolo contendere, conditioned on reservation for appellate review of the question of legality of the evidence seized and used against him. The court in Ashby held the practice to be not objectionable since it expedites resolution of the controversy and narrows the issues to be resolved. However the court stated:
“A different result would obtain if the plea was one of guilty rather than nolo contendere, . .” (At 228.)
The rule in Florida is that a voluntary plea of guilty in a criminal case waives all defects other than jurisdiction. Mixon v. State, 54 So. 2d 190 (Fla.1951); Gibson v. State, 173 So. 2d 766 (Fla. 3rd DCA 1965); Hunter v. State, 174 So. 2d 415 (Fla. 3rd DCA 1965).
The defendant should have been allowed to enter his plea of nolo contendere so he properly could have preserved his right of appeal. We could reverse and remand the case to allow the defendant to withdraw his plea of guilty and enter a new plea of nolo contendere. However such action will not be necessary in this case. No useful purpose would be served in allowing the defendant to bring this matter back before the court. The trial court’s refusal to accept a plea of nolo contendere in this case was harmless error because the point on appeal which appellant sought to preserve is without merit.
Affirmed.
CROSS, J., and CARLTON, CHARLES T., Associate Judge, concur.
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Citator
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Siders v. State, 342 So. 2d 1013 (Fla. 4th DCA 1977)…under the Speedy Trial Rule, Fla.R. Crim.P. 3.191. The court below assured appellant that his right of appeal had been reserved. This was error. A voluntary plea of guilty in a criminal case waives all defects other than jurisdiction. Rece v. State, 333 So. 2d 494 (Fla. 4th DCA 1976). Normally we would reverse and remand to allow appellant to withdraw his plea of guilty and enter a new plea of nolo contendere, thereby preserving his right to appeal. State v. Ashby, 245 So. 2d 225 (Fla.1971). This will not be…
Authorities Cited
- State v. Ashby, 245 So. 2d 225 (Fla. 1971)
- Mixon v. State, 54 So.2d 190 (Fla. 1951)
- Gibson v. State, 173 So. 2d 766 (Fla. 3d DCA 1965)
- Hunter v. State, 174 So. 2d 415 (Fla. 3d DCA 1965)