Counts v. State, 78-1679

• Court: Court of Appeal of Florida (US)
• Citation: 376 So.2d 59
• Docket Number: No. 78-1679,78-1679
• Parties: Pamela J. COUNTS, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 26 October 1979

Page 59

376 So.2d 59

Pamela J. COUNTS, Appellant, v. STATE of Florida, Appellee.

No. 78-1679.

District Court of Appeal of Florida, Second District.

Oct. 26, 1979.

Jack O. Johnson, Public Defender, James R. Wulchak, Asst. Public Defender, and Charles L. Stutts, Legal Intern, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

The appellant seeks to appeal from a judgment and sentence entered on her plea of guilty to a charge of robbery. The public defender has moved to withdraw as appointed counsel for appellant pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on the basis that there are no meritorious grounds for an appeal. ¹ We perceive a threshold jurisdictional question, however, and dismiss the appeal.

Pamela J. Counts pled guilty to a charge of robbery. After outlining those constitutional rights which Counts was waiving, the trial judge informed her of the maximum penalty for the crime and found a factual basis for her plea. He further found that Counts, who had two years of college, had entered her plea voluntarily and that she was satisfied with her counsel.

Florida Rule of Criminal Procedure 3.172(c)(iv) provides that if a criminal defendant pleads guilty, "he gives up his right to appeal all matters relating to the judgment including the issue of guilt or innocence, but he does not impair his right to review by appropriate collateral attack." Similarly, Florida Rule of Appellate Procedure 9.140(b) provides that "(a) defendant may not appeal from a judgment entered upon a plea of guilty . . . ."

In Robinson v. State, 373 So.2d 898, 902 (Fla.1979), the supreme court stated that an appeal following a guilty plea is limited to "an exclusive and limited class of issues which occur contemporaneously with the entry of the plea . . . ." The court then listed four types of issues which might provide a proper basis for an appeal following a guilty plea: subject matter jurisdiction issues; questions concerning the illegality of the sentence; the failure of the government to abide by the plea agreement; and questions concerning the voluntary and intelligent character of the plea. Id. The only issue which might apply to the present appeal is the question of the voluntariness of the plea. Counts, however, did not move to withdraw her guilty plea in the trial court. Such a motion is a prerequisite to a direct appeal challenging the voluntariness of that plea. In Robinson the court stated:

Furthermore, we find that an appeal from a guilty plea should never be a substitute for a motion to withdraw a plea. If the record raises issues concerning the voluntary or intelligent character of the plea, that issue should first be presented to the trial court in accordance with the law and standards pertaining to a motion to withdraw a plea. If the action of the trial court on such motion were adverse to the defendant, it would be subject to review on direct appeal.

Id.

The purposes of requiring a motion to withdraw the guilty plea as a prerequisite to an appeal are obvious. This procedure enables the trial judge to pass on any points raised and establishes a record on which an appellate court may base an informed and reasoned disposition of the appeal. ² Were it not for this record of the motion hearing, the only evidence of voluntariness in the vast majority of appeals would be the colloquy between the trial judge and the defendant. In most instances, therefore, the appellate court would not have a sufficient basis to render an informed decision on the issue of voluntariness. By requiring the defendant to make a prior motion to withdraw, however, the question of voluntariness...