Brown v. State, No. 77-432

CourtCourt of Appeal of Florida (US)
Writing for the CourtHUBBART
Citation355 So.2d 138
PartiesEdward J. BROWN, Appellant, v. STATE of Florida, Appellee.
Decision Date31 January 1978
Docket NumberNo. 77-432

Page 138

355 So.2d 138
Edward J. BROWN, Appellant,
v.
STATE of Florida, Appellee.
No. 77-432.
District Court of Appeal of Florida, Third District.
Jan. 31, 1978.
Rehearing Denied March 6, 1978.

Page 139

Tobias Simon and Theodore L. Tripp, Jr., Miami, for appellant.

Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.

Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

HUBBART, Judge.

This is an appeal from a criminal conviction for unlawful possession of marijuana based upon a nolo contendere plea entered before the Dade County Circuit Court. The controlling issue presented for appeal is whether the denial of a pre-trial motion to suppress which raises solely a question of a law may be specifically preserved for appeal by the defendant upon the entry of a nolo contendere plea in a criminal case. We hold that the denial of such a pre-trial motion may be so preserved for appellate review if acceptable to the court only where the record clearly shows that the state's case could not succeed without use of the evidence sought to be suppressed. Accordingly, we affirm.

The defendant Edward J. Brown was charged by information with unlawful possession of marijuana as a felony before the Dade County Circuit Court. The defendant entered a plea of not guilty and filed a pre-trial motion to suppress his confession given to the police. No motion to suppress the marijuana with which the defendant was charged with unlawfully possessing was ever filed. Upon stipulation of the parties, the trial court considered a series of pre-trial discovery depositions taken by the defendant as the sole testimony offered by both parties on the motion to suppress. There is no showing in the record that this deposition testimony represented the full extent of the state's case against the defendant.

The deposition testimony revealed that certain marijuana was seized by the police from a motel room which the defendant had registered for and rented. The defendant was subsequently arrested upon return to the room after making an unsuccessful attempt to flee from the police. Other people were also present in the motel room at the time of the marijuana seizure and they too were arrested.

The trial court denied the motion to suppress after reviewing the above depositions and hearing argument of counsel. The defendant thereupon changed his plea of not guilty to a plea of nolo contendere to the information as charged upon the condition that he be allowed to seek appellate review of the denial of the motion to suppress. The trial court accepted the plea as so...

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11 practice notes
  • Brown v. State, No. 53782
    • United States
    • United States State Supreme Court of Florida
    • June 14, 1979
    ...By petition for writ of certiorari, petitioner seeks review of the decision of the District Court of Appeal, Third District, reported at 355 So.2d 138, which is alleged to be in conflict with Fullard v. State, 352 So.2d 1271 (Fla. 1st DCA 1977). The issue presented is whether a criminal def......
  • Webb v. State, No. MM-195
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 1979
    ...before us it cannot be said that a ruling on that issue would be dispositive of the controversy. Brown v. State, supra; Brown v. State, 355 So.2d 138 (Fla.3rd DCA 1978); Tiller v. State, 330 So.2d 792 (Fla. 1st DCA In Brown v. State, 355 So.2d 138 (Fla. 3rd DCA 1976), decision approved Brow......
  • Leslie v. Wainwright, No. 79-301-Orl-Civ-Y.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 20, 1981
    ...reserve his right to appeal, must show that the legal issue reserved for appeal is dispositive of the case. Compare Brown v. State, 355 So.2d 138 (Fla. 3d D.C.A. 1978) (Ashby nolo plea not appropriate when legal issue raised on appeal is not dispositive of the case) with Fullard v. State, 3......
  • Monroe v. State, 77-2484
    • United States
    • Court of Appeal of Florida (US)
    • January 9, 1979
    ...of law could not be specifically preserved for appellate review by him upon entry of his plea of nolo contendere. See Brown v. State, 355 So.2d 138 (Fla.3d DCA For the reasons stated, the denial of his motion to suppress is affirmed. Affirmed. --------------- 1 However, he had not yet been ......
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11 cases
  • Brown v. State, No. 53782
    • United States
    • United States State Supreme Court of Florida
    • June 14, 1979
    ...By petition for writ of certiorari, petitioner seeks review of the decision of the District Court of Appeal, Third District, reported at 355 So.2d 138, which is alleged to be in conflict with Fullard v. State, 352 So.2d 1271 (Fla. 1st DCA 1977). The issue presented is whether a criminal def......
  • Webb v. State, No. MM-195
    • United States
    • Court of Appeal of Florida (US)
    • July 24, 1979
    ...before us it cannot be said that a ruling on that issue would be dispositive of the controversy. Brown v. State, supra; Brown v. State, 355 So.2d 138 (Fla.3rd DCA 1978); Tiller v. State, 330 So.2d 792 (Fla. 1st DCA In Brown v. State, 355 So.2d 138 (Fla. 3rd DCA 1976), decision approved Brow......
  • Leslie v. Wainwright, No. 79-301-Orl-Civ-Y.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 20, 1981
    ...reserve his right to appeal, must show that the legal issue reserved for appeal is dispositive of the case. Compare Brown v. State, 355 So.2d 138 (Fla. 3d D.C.A. 1978) (Ashby nolo plea not appropriate when legal issue raised on appeal is not dispositive of the case) with Fullard v. State, 3......
  • Monroe v. State, 77-2484
    • United States
    • Court of Appeal of Florida (US)
    • January 9, 1979
    ...of law could not be specifically preserved for appellate review by him upon entry of his plea of nolo contendere. See Brown v. State, 355 So.2d 138 (Fla.3d DCA For the reasons stated, the denial of his motion to suppress is affirmed. Affirmed. --------------- 1 However, he had not yet been ......
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