Peña v. State, No. 4D04-2991 (FL 10/12/2005), No. 4D04-2991.

• Court: United States State Supreme Court of Florida
• Writing for the Court: Per Curiam
• Parties: EFRAIN PEñA Appellant, v. STATE OF FLORIDA, Appellee.
• Decision Date: 12 October 2005
• Docket Number: No. 4D04-2991.

Page 1

EFRAIN PEñA Appellant,
v.
STATE OF FLORIDA, Appellee. No. 4D04-2991. District Court of Appeal of Florida, Fourth District. October 12, 2005.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Burton C. Conner, Judge, L.T. Case No. 562003CF003550A.

V.J. (Jimmy) Benincasa, Vero Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We deny the motion for rehearing, withdraw our earlier opinion, and substitute the following.

Efrain Peña challenges the trial court's refusal to allow him to enter St. Lucie County's version of the pretrial drug intervention program ("Drug Court"). Peña, a non-resident alien, was arrested for possession of cocaine and eventually filed a motion to participate in Drug Court. The State argued against participation on the ground that participation may not be appropriate based on Peña's status as an illegal alien. The trial court denied the motion, Peña withdrew his not guilty plea, and Peña entered a no contest plea reserving the right to appeal the denial of his motion to participate in Drug Court. The trial court then sentenced Peña to probation.

Peña filed this appeal, believing this court had jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i). That rule allows a defendant to appeal, after a no contest plea, "a prior dispositive order of the lower tribunal." Fla. R. App. P. 9.140(b)(2)(A)(i). In this context, an "issue is legally dispositive `only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case.'" Levine v. State, 788 So. 2d 379, 380 (Fla. 4th DCA 2001) (quoting Zambuto v. State, 731 So. 2d 46, 46 (Fla. 4th DCA 1999)). An exception to this rule applies when there is "record evidence of a stipulation between the parties that the issue was dispositive." Weber v. State, 492 So. 2d 1166, 1167 (Fla. 4th DCA 1986) (citing Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982)).

We conclude the denial of the motion to participate in Drug Court is not a legally dispositive order to the extent necessary to confer jurisdiction in this court. Even if this court reversed and remanded for the court to grant Peña's entry into the program, a trial may still yet be necessary if, for some reason, Peña opts out of the program and re-enters...