Freeman v. State
| Decision Date | 17 May 1984 |
| Docket Number | No. 82-1606,82-1606 |
| Citation | 450 So.2d 301 |
| Parties | Craig Eugene FREEMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant Craig Eugene Freeman pleaded nolo contendere to the offenses of burglary of a structure and resisting an officer without violence expressly reserving his right to appeal the denial of a motion to suppress his confession. There was no finding by the court that the suppression issue was dispositive of the case.
In Brown v. State, 376 So.2d 382 (Fla.1979), the Florida Supreme Court held that a defendant could take an appeal from a judgment entered upon a conditional plea of nolo contendere only when the reserved issue was legally dispositive of the case. In the course of its opinion, the court stated:
We must now ascertain what constitutes a dispositive legal issue. In most cases the determination will be a simple one. Motions testing the sufficiency of the charging document, the constitutionality of a controlling statute, or the suppression of contraband for which a defendant is charged with possession are illustrative. This case, however, presents us with one of the truly inscrutable areas--confessions. In order to determine accurately whether a confession is dispositive of a case, the prosecution would have to present to the trial judge all of the evidence it intended to introduce at trial. The judge would then have to decide on the basis of hearsay and summarized information, whether there was sufficient evidence apart from the confession to support a conviction. Such a procedure would be unwieldy and time-consuming. Therefore, in order to avoid a mini-trial on the sufficiency of the evidence in each case involving a confession, we hold that as a matter of law a confession may not be considered dispositive of the case for purposes of an Ashby nolo plea. (footnote omitted; emphasis added)
In the instant case, counsel announced that Freeman would withdraw his not guilty plea and enter a plea of no contest "specifically reserving the right to appeal the denial of a motion to suppress a confession, which we filed dated June 9, 1982." Following a recap of the grounds of the motion, the following colloquy occurred:
[DEFENSE COUNSEL]: We would, we feel that the state's version of the facts, which I presume will be given in a few minutes, do not substantiate, or would not substantiate a guilty plea or guilty verdict in either one of these charges, and the confession, we filed and sent the motion to suppress the confession, that being denied--in other words, if it had been granted, we feel as if the state would not have been able to bear the burden of proof they need to bear to get a conviction in these cases.
We do enter a plea of no contest, reserving the right to appeal that denial.
Of course not stipulating or agreeing it is fully dispositive of that case.
The state possibly could still go forward to a jury trial even without the admission or confessions of Craig Freeman.
Mr. Freeman, plead no contest here today, told your lawyer of course going to adjudicate you guilty, put a felony on your record and also a misdemeanor; Court's going to impose three years Department of Corrections on count one the burglary of a structure, and impose one year in the Orange County Jail, count two, resisting an officer without violence. These two sentences run concurrently, at the same time--however, they would run consecutive, in addition to any other sentence you might be serving, if you're serving any other sentence.
Do you fully understand that?
Plead no contest, nolo contendere, you're not admitting the two charges, not disputing, not contesting them--however, you are reserving your right to take an appeal; do you understand all that?
MR. FREEMAN: Yes, sir. (emphasis added)
Whether a confession is dispositive is not a matter to be determined initially by an appellate court. It is a matter to be determined by the trial court before acceptance of a plea of nolo contendere with a reservation of the right to appeal. Since Brown, some district courts of appeal have held that a confession could be dispositive of the case if so stipulated by the state. See Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff'd., 392 So.2d 1324 (Fla.1981); Oesterle v. State, 382 So.2d 1293 (Fla. 2d DCA 1980). In Sommers v. State, 404 So.2d 366 (Fla. 2d DCA) petition dismissed, 407 So.2d 1105 (Fla.1981), the Second District held that in ordinary cases where a defendant seeks to plead nolo contendere with the reservation of the right to appeal an issue, his attorney will have some burden to show that the issue is actually dispositive, though a mere reference to the nature of the case, such as possession of contraband may sometimes suffice for this purpose. According to the Second District, if the state attorney does not stipulate that the issue is dispositive, he should then explain to the court the additional available evidence upon which the defendant might be convicted and at this point the court should determine whether the issue is dispositive and decide whether to accept the plea.
Although the trial court made no finding that the suppression of the confession was dispositive, we conclude that the statements made by the prosecutor amounted to a stipulation that the confession was dispositive. Counsel for Freeman clearly contended the confession was necessary to the state's case. The state twice said that the plea was acceptable to it under the circumstances. The factual statement offered by the state reflects that Freeman was not found at the scene of a burglary, but...
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