Everett v. State, s. 86-2692

• Citation: 535 So.2d 667,14 Fla. L. Weekly 59
• Decision Date: 21 December 1988
• Docket Number: Nos. 86-2692,86-2693,s. 86-2692
• Parties: 14 Fla. L. Weekly 59 Morris E. EVERETT, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 667

535 So.2d 667

14 Fla. L. Weekly 59

Morris E. EVERETT, Jr., Appellant, v. STATE of Florida, Appellee.

Nos. 86-2692, 86-2693.

District Court of Appeal of Florida,

Second District.

Dec. 21, 1988.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

FRANK, Judge.

In Case No. 86-2692 Everett pleaded nolo contendere to the crime of first degree murder, reserving the right to appeal the denial of his motion to suppress a confession to the charged crime.

Our first concern is jurisdictional. In State v. Ashby, 245 So.2d 225 (Fla.1971), our supreme court sanctioned the practice of allowing defendants to plead nolo contendere with reservation of the right to seek review of a question of law. Subsequently, in Brown v. State, 376 So.2d 382 (Fla.1979), the supreme court engrafted upon the Ashby doctrine the requirement that the reserved legal issue must control final disposition of the case. In commenting upon those matters which might be determinative in implementing the Ashby principle, the supreme court expressly isolated the confession as a ground that could not, as a matter of law, provide the element essential to ultimate resolution of the proceeding. Id. at p. 385. However harsh Everett may perceive the effect of Brown to be, Brown is well embedded in Florida's jurisprudence--"We ... reiterate our holding in Brown: an issue is preserved for appeal on a nolo plea only if it is dispositive of the case." State v. Carr, 438 So.2d 826 (Fla.1983). Thus, in the light of Brown and consistent with our decisions in Hardison v. State, 385 So.2d 738 (Fla. 2d DCA 1980), and Arnold v. State, 379 So.2d 1003 (Fla. 2d DCA 1980), we would be warranted in dismissing the instant appeals. We have determined not to follow that course, however, because the record of the plea hearing is "murky" and suggests that the trial court's comments gave tacit approval to the appealability of the reserved questions. Spiker v. State, 477 So.2d 1063 (Fla. 2d DCA 1985) (confession reviewed notwithstanding an unclear record as to the appealability of the order denying the motion to suppress); see also Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), affirmed, 392 So.2d 1324 (Fla.1981) (Brown does not foreclose a stipulation that question associated with confession can be dispositive); but see Weber v. State, 492 So.2d 1166 (Fla. 4th DCA 1986) (in absence of stipulation that issue would be dispositive, appellate court will not imply dispositiveness from trial court's statement that issue was reserved for appeal).

Before turning to the two issues we have concluded to review, however, we find it appropriate to emphasize that when a trial court receives a plea subject to the requirements of rule 3.172 of the Florida Rules of Criminal Procedure and the defendant reserves a question of law for appeal, the trial court is obligated to determine the dispositive nature of the reserved question. See Leisure v. State, 429 So.2d 434 (Fla. 1st DCA 1983). A trial court, as occurred here, errs if it merely acknowledges that the defendant has reserved an issue for appellate review. There are at least two cogent reasons for imposing an obligation upon the trial court to assess and determine whether the reserved question of law will control the outcome of the case. First it enhances the likelihood that a meritless appeal...