Brown v. State, 77-432
| Decision Date | 31 January 1978 |
| Docket Number | No. 77-432,77-432 |
| Citation | 355 So.2d 138 |
| Parties | Edward J. BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
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.
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 conditioned, withheld adjudication of guilt and placed the defendant on two years probation. The defendant now appeals his conviction to this court and assigns as error the denial of the motion to suppress.
The law is well-settled that the defendant cannot appeal a pre-trial order denying a motion to suppress in a criminal case. Mitchell v. State, 282 So.2d 648 (Fla.2d DCA 1973). Under very narrow circumstances, however, he may enter a nolo contendere plea after the denial of a pre-trial motion to suppress on the specifically stated condition that he is preserving for appeal the denial of the motion to suppress providing the record clearly shows that the state's case against the accused could not succeed without use of the evidence sought to be suppressed. If this conditional nolo contendere plea is acceptable to the court and the question preserved is one of law as opposed to fact, the defendant may appeal the judgment of conviction and sentence and properly assign as error the denial of the motion to suppress. If the appeal is successful for the defendant, the judgment of conviction is reversed with directions to afford the defendant an opportunity to withdraw his nolo contendere plea. State v. Ashby, 245 So.2d 225, 228 (Fla.1971); Nast v. State, 333 So.2d 103 (Fla.2d DCA 1976); Tiller v. State, 330 So.2d 792 (Fla.1st DCA 1976); Stanley v 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...
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Brown v. State
...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......
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Webb v. State
...nolo contendere, since on the record 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. ......
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Leslie v. Wainwright
...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......
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Monroe v. State
...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 1978). For the reasons stated, the denial of his motion to suppress is Affirmed. 1 However, he had not yet been indicted at this po......