Ford v. State, 90-3215

• Decision Date: 25 February 1991
• Docket Number: No. 90-3215,90-3215
• Citation: 575 So.2d 1335,16 Fla. L. Weekly 561
• Parties: 16 Fla. L. Weekly 561 Larry FORD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1335

575 So.2d 1335

16 Fla. L. Weekly 561

Larry FORD, Appellant, v. STATE of Florida, Appellee.

No. 90-3215.

District Court of Appeal of Florida First District.

Feb. 25, 1991.

Glen Gifford, Asst. Public Defender, Tallahassee, for appellant.

James W. Rogers, Asst. Atty. Gen., Tallahassee, for appellee.

ORDER ON MOTION TO DISMISS

PER CURIAM.

The state filed a motion to dismiss this criminal appeal, arguing that appellant pleaded guilty or nolo contendere without expressly reserving the right to appeal and received a sentence consistent with the plea agreement. The state seeks dismissal pursuant to section 924.06(3), Florida Statutes and Hughes v. State, 565 So.2d 354 (Fla. 1st DCA 1990). ¹ We deny the motion to dismiss ² and take this opportunity to clarify Hughes.

Appellant entered a plea of nolo contendere to armed robbery and false imprisonment. He was sentenced to 10 years on the first charge, 5 years on the second and adjudicated a habitual violent felony offender. The record was received in this court on December 6, 1990. On December 7, the state filed the motion to dismiss. After reviewing the supplemental memoranda we determine that the motion to dismiss must be denied.

Section 924.06(3) states:

A defendant who pleads guilty or nolo contendere with no express reservation of the right to appeal shall have no right to a direct appeal. Such a defendant shall obtain review by means of collateral attack.

The Florida Supreme Court has specifically held section 924.06(3) to be constitutional, holding that the prohibition against appeal from a guilty plea is "directed to pretrial rulings and not to matters which may occur contemporaneously with a plea of guilty or a plea of nolo contendere." Robinson v. State, 373 So.2d 898, 900 (Fla.1979). The court held that there was a limited class of issues which occur contemporaneously with the entry of the plea that may be the proper subject of an appeal. The court stated:

To our knowledge, they would include only the following: (1) the subject matter jurisdiction, (2) the illegality of the sentence, (3) the failure of the government to abide by the plea agreement, and (4) the voluntary and intelligent character of the plea.

Id. at 902. Pursuant to Robinson, a defendant can maintain a direct appeal, even when a plea of nolo contendere or guilty is entered, if the defendant raises issues which occur at the time the plea is entered.

Where there is right to direct appeal, there follows the right to appointed counsel. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Appointed counsel must comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), even where there is a guilty plea. U.S. v. Mosley, 488 F.2d 537 (5th Cir.1973). Anders requires that counsel review the record and submit a brief, pointing to anything that may arguably be reversible error. In re Order of the First District Court of Appeal Regarding Brief Filed in Forrester v. State, 556 So.2d 1114 (Fla.1990). If counsel files a brief which does not point to reversible error, Anders requires that an indigent appellant be allowed time to file a pro se brief raising any points that he chooses. After the initial brief, pro se brief and the complete record on appeal have been filed, the court must then make an independent examination of the record. Anders; Mosley. Only at this point can it be determined if the court lacks jurisdiction and whether dismissal of the appeal is proper. Here, the initial brief, which would apprise the court of the issues on appeal, has not been filed, nor has the pro se brief. At this stage in the proceedings, the court is unable to review the complete record and the initial brief on the merits. Accordingly, the motion to dismiss filed in this case is premature and must be denied.

In Hughes, this court suggested that where appellate counsel determines that the client...