Foster v. State
Decision Date | 06 December 2017 |
Docket Number | Case No. 2D16–3902 |
Citation | 232 So.3d 512 |
Parties | Tex Cordell FOSTER, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
In this Anders 1 appeal, Tex Cordell Foster appeals his judgment and sentence entered after he pleaded guilty to lewd or lascivious conduct. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A), (F). We affirm his conviction without further comment. We write to explain why, despite Mr. Foster's express reservation of the trial court's ruling allowing Williams 2 rule evidence, the issue is not cognizable on appeal.
The State charged Mr. Foster with lewd or lascivious molestation, a life felony. As the case progressed, the State filed a Williams rule notice pursuant to section 90.404(2)(d)(1), Florida Statutes (2015). The trial court conducted a hearing and determined that the evidence, testimony from another child allegedly molested by Mr. Foster, was "admissible and relevant to prove motive, intent, and absence of mistake." The trial court memorialized its ruling in a detailed written order.
On the day of trial, defense counsel announced that the parties had negotiated a plea agreement. The State agreed to a reduced charge and Mr. Foster agreed to an eight-year prison sentence followed by five years of sex offender probation. Defense counsel further declared that as "part of the plea [Mr. Foster] is reserving the right to appeal the Williams rule hearing." The trial court expressed skepticism, observing that "it is an interlocutory order ... that would only be apparent to the appellate court at trial." In light of its misgivings, the trial court asked Mr. Foster whether he still wished to proceed with his plea. Mr. Foster responded that he did. After a thorough plea colloquy, the trial court sentenced him in accordance with the negotiated disposition.
Following entry of a guilty plea, the Florida Statutes and the Florida Rules of Appellate Procedure cabin the scope of a defendant's appeal. Section 924.051(4), Florida Statutes (2016), states that "if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence." The Florida Rules of Appellate Procedure provide that upon entry of a guilty plea, a defendant may appeal "a prior dispositive order of the lower tribunal" for which the right to appeal has been expressly reserved. Fla. R. App. P. 9.140(b)(2)(A)(i) (emphasis added); see also England v. State, 46 So.3d 127, 129 (Fla. 2d DCA 2010) ( ).
Two barriers block Mr. Foster's attempt to appeal the Williams rule order. First, as we have recognized in the context of suppression motions, the parties may stipulate, or the trial court must expressly find, that the order is, in fact, dispositive. See Dermio v. State, 112 So.3d 551, 557 (Fla. 2d DCA 2013) . The record reflects no such stipulation. See Henderson v. State, 135 So.3d 1092, 1095 (Fla. 2d DCA 2013) () . Moreover, Mr. Foster made no suggestion at the plea hearing that the Williams rule order was dispositive, nor did the trial court make such a finding.
Second, "[a]n issue is preserved for appeal on a guilty plea only if it is dispositive of the case." Levine v. State, 788 So.2d 379, 380 (Fla. 4th DCA 2001). "A motion is dispositive if the State could not proceed to trial if the defendant prevailed on the appeal of the ruling on the motion." M.N. v. State, 16 So.3d 280, 281 (Fla. 2d DCA 2009) (en banc); see, e.g., Campbell v. State, 386 So.2d 629, 629 (Fla. 5th DCA 1980) () .
The trial court's Williams rule order was not dispositive. Even if the ruling was erroneous, the State could, and likely would, have proceeded to trial. Williams rule evidence is "admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." § 90.404(2)(a) ; see, e.g., Ricketts v. State, 125 So.3d 194, 195–96 (Fla. 4th DCA 2013) .
But the evidence was not necessary to obtain a conviction. Even if the trial court excluded the Williams rule evidence, the State could have still called the victim to testify at trial. Without commenting upon the weight afforded to the victim's testimony, a determination for the jury, we observe that the victim's testimony, alone, could likely be sufficient to establish the elements of the charged offense. See § 800.04(5)(a), (b),...
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Hicks v. State
...parties. What theoretically could happen on remand in a vacuum is not controlling under Churchill . See also Foster v. State , 232 So. 3d 512, 514–15 (Fla. 2d DCA 2017) (holding an issue is dispositive if the State cannot go to trial after losing the motion). If the parties agreed it is dis......
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Appeals
...evidence was not necessary to obtain a conviction. Thus, as the motion was not dispositive, no basis to appeal exists. Foster v. State, 232 So. 3d 512 (Fla. 2d DCA 2017) Defendant’s appeal was premature as his judgments and sentences had yet to be rendered and become final. A “memo of sente......