Fuller v. State, No. 98-1374

• Decision Date: 23 June 1999
• Docket Number: No. 98-1374, No. 98-1458, No. 98-1459.
• Citation: 748 So.2d 292
• Parties: Johnny FULLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

748 So.2d 292

Johnny FULLER, Appellant, v. STATE of Florida, Appellee.

Nos. 98-1374, 98--1459.

District Court of Appeal of Florida, Fourth District.

June 23, 1999.

Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Douglas J. Glaid, Assistant Attorney General, Fort Lauderdale, for appellee.

SHAHOOD, J.

Appellant, Johnny Fuller, appeals the judgment and sentence entered against him in three consolidated cases (98-1374, 98-1458, and 98-1459) after his plea of no contest to one count of sexual battery on a mentally defective victim and two orders revoking probation. Appellant raises two points on appeal. He first argues that the trial court's order finding him competent is a dispositive order which can be appealed following a no contest plea. He further alleges that the trial court erred by finding him competent to proceed. We hold the trial court's order not to be a dispositive order, and therefore dismiss this appeal for lack of jurisdiction. In that we are dismissing the appeal for lack of jurisdiction, the second issue raised by appellant is deemed moot, and we therefore decline to discuss the same.

In these cases appellant was originally charged with one count of burglary of a structure in June of 1993, evaluated by two doctors, and deemed by the trial court incompetent to stand trial. In April of 1994 appellant was reevaluated and recommitted for a period of one year. Five months later in September of 1994, the court found appellant met the criteria for hospitalization and recommitted him for a period up to one additional year.

In June of 1995 appellant was reevaluated by the Diagnostic and Evaluation Team of the Developmental Services Program of the Department of Health and Rehabilitative Services, and was deemed competent to stand trial by the trial court. He pled no contest and was placed on probation for a period of five years with the special condition that he attend and complete the United Cerebral Palsy Group Home Program (UCPP).

Appellant was next before the court in March of 1996, when he was charged with having violated his probation by the commission of three new crimes. The court again had appellant evaluated and again found him competent to proceed. Appellant, Fuller again pled guilty to two counts of the new charges and was placed on three years probation with the special condition that he attend the UCPP.

In January of 1998 another warrant issued this time alleging appellant violated his probation in June of 1997, by committing a sexual battery on William Carmichael, a person over the age of twelve and mentally defective, while participating in the UCPP. The court appointed two doctors to evaluate appellant for competency. One of the doctors found appellant not competent to stand trial while the other doctor found him competent to stand trial in accordance with the statutory criteria even though he had many questions as to other capabilities of appellant. Based on the foregoing, the trial court again found appellant competent to proceed.

Appellant then proceeded to file an emergency petition for writ of certiorari/ prohibition with this court which was sua sponte dismissed for lack of jurisdiction. (No. 98-1164). Following this court's dismissal of Fuller's petition seeking certiorari or prohibition relief, the trial court conducted a plea conference on April 3, 1998. Fuller's counsel stated Fuller's intent to plead no contest reserving his right to appeal the competency determination. The court stated its belief the competency determination was not dispositive and asked the state whether it was willing to stipulate to dispositiveness. The state initially stated it was willing to so stipulate, later stating it was unable to do so after the court explained that if the appellate court reversed the determination "that's the end of the case." Fuller's counsel noted his petition for certiorari/prohibition had been denied and asked the trial court "[h]ow else do you have review of a court's ruling that a person is competent?" The trial court responded: "Go to trial. If he's found not guilty, the appellant [sic] court never has to take up their time. If he's found guilty, you could take the appeal".

Thereafter, following a protracted plea colloquy, appellant pled no contest to the charges and the court proceeded to revoke appellant's prior terms of probation and sentence him to time served on the 1993 charge, three years of probation on the 1996 charges, and five years of probation on the 1997 sexual battery charge, to be served concurrently (with his sentence on the 1996 charges).

Generally, in a criminal case, one may plead no contest conditioned on the right to preserve for appellate review a question of law. State v. Ashby, 245 So.2d 225 (Fla.1971). An Ashby nolo contendere plea, or conditional nolo contendere plea, is permissible...