Blalock v. State, No. 1D19-3398

• Citation: 297 So.3d 688
• Decision Date: 10 June 2020
• Docket Number: No. 1D19-3398
• Parties: Eddie Roger BLALOCK, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

297 So.3d 688

Eddie Roger BLALOCK, Appellant,

v.STATE of Florida, Appellee.

No. 1D19-3398

District Court of Appeal of Florida, First District.

June 10, 2020

Andy Thomas, Public Defender, and John Villafrate, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee.

Per Curiam.

Appellant, Eddie Roger Blalock, appeals the trial court's judgment and sentence entered in his violation of probation case and in his new law offense case where he was charged with possession of a controlled substance. He argues that the trial court erred in denying his motion to recuse filed in both cases and that it subsequently conducted a plea colloquy that was legally insufficient. For the reasons that follow, we affirm the judgment and sentence as to the violation of probation case, but we are constrained to reverse and remand as to the new law offense case.

We affirm the judgment and sentence as to Appellant's violation of probation case, entered following his plea, because a ruling on a motion to disqualify is not dispositive and he failed to preserve the argument that the plea colloquy was legally insufficient. See Fla. R. App. P. 9.140(b)(2)(A) (providing that a defendant may not appeal from a guilty or nolo contendere plea except under the enumerated circumstances, which include the reservation of the right to appeal a prior dispositive order, an involuntary plea if preserved by a motion to withdraw plea, and as otherwise provided by law); see also Zambuto v. State , 731 So. 2d 46, 46 (Fla. 4th DCA 1999) (finding that a ruling on a motion to recuse is not dispositive and citing Duckworth v. State , 469 So. 2d 913 (Fla. 1st DCA 1985), as holding the same); Vito v. State , 270 So. 3d 1287, 1288–89 (Fla. 1st DCA 2019) (acknowledging that the trial court did not review each of the Florida Rule of Criminal Procedure 3.172(c) factors during the plea colloquy, but affirming because the appellant did not preserve through his motion to withdraw plea the argument on appeal that the court failed to determine that he understood the rights waived by, and the potential consequences of, entering a guilty plea as required by the rule).

On the other hand, as the State concedes, the record reflects that Appellant was not sworn in, he did not enter a plea in the new law offense case, and he was not informed of the consequences of entering a plea. Yet, the parties and the trial court proceeded at the sentencing hearing under the assumption that Appellant had also entered a plea in the new law offense case. See Haug v. State , 151 So. 3d 560, 561 (Fla. 1st DCA 2014) (quoting Koenig v. State , 597 So. 2d 256, 258 (Fla. 1992), that "[d]ue process requires a court accepting a guilty plea to carefully inquire into the defendant's understanding of the plea, so that the record contains an affirmative showing that the plea was intelligent and voluntary," and reversing "[b]ecause the legal requirements of Florida Rules of Criminal Procedure 3.170(k) and 3.172(c) were not fulfilled" where the trial court adjudicated the appellant guilty and sentenced him for violating his probation, but "the record reflects that [he] was never sworn in, he never admitted to any of the alleged violations of probation, and he was never informed of the consequences of his admission"); see also Davis v. State , 187 So. 3d 1284, 1284 (Fla. 1st DCA 2016) (reversing and remanding with instructions to conduct a plea colloquy before entering a judgment and sentence because the trial court violated rule 3.172(c) where the parties believed that the appellant had admitted to violating his probation and the trial court skipped the plea colloquy before sentencing him,...