Gonzalez v. State, No. 96-1314

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM; COPE
Citation685 So.2d 975
Docket NumberNo. 96-1314
Decision Date02 January 1997
Parties22 Fla. L. Weekly D71 Roberto Herminio GONZALEZ, Appellant, v. The STATE of Florida, Appellee.

Page 975

685 So.2d 975
22 Fla. L. Weekly D71
Roberto Herminio GONZALEZ, Appellant,
v.
The STATE of Florida, Appellee.
No. 96-1314.
District Court of Appeal of Florida,
Third District.
Jan. 2, 1997.

Roberto Herminio Gonzalez, in pro. per.

Robert A. Butterworth, Attorney General and Douglas Gurnic, Assistant Attorney General, for appellee.

Before COPE, GODERICH and FLETCHER, JJ.

Page 976

PER CURIAM.

The defendant appeals from the trial court's denial of his 3.850 motion for post-conviction relief without an evidentiary hearing. In his motion, the defendant alleged ineffective assistance of counsel for failure to file a timely direct appeal. We affirm the trial court's denial of his motion on the basis that a careful review of the record reveals that the defendant pled guilty, that at the plea colloquy, the defendant expressly waived his right to a direct appeal, and that the defendant's motion failed to allege with specificity any of the limited exceptions, dictated by Robinson v. State, 373 So.2d 898 (Fla.1979), necessary for an appeal from a guilty plea. Fla.R.Crim.P. 3.172(c)(4); Fla.R.App.P. 9.140(b). Additionally, we certify conflict with Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993).

Affirmed; conflict certified.

GODERICH and FLETCHER, JJ., concur.

COPE, Judge (concurring).

I join the majority opinion. Because we are certifying conflict with a decision of the Fourth District, I believe it would be helpful to comment on the conflict.

I.

In the present case defendant pled guilty and was sentenced pursuant to his plea agreement. Several months later defendant filed a rule 3.850 motion requesting a belated appeal of the judgment entered pursuant to his guilty plea. In his motion defendant says only that he asked his counsel to file a notice of appeal and that counsel failed to do so.

The trial court denied defendant's 3.850 motion. Defendant has appealed.

The pivotal issue in this case is waiver. In the plea colloquy, defendant explicitly waived his right to appeal. Even if he had not said so, as a matter of law a "plea of guilty cuts off any right to an appeal from court rulings that preceded the plea...." Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

To the general rule--that a guilty plea waives the right to appeal--there are a few limited exceptions. "Once a defendant enters a plea of guilty, the only points available for an appeal concern actions which took place contemporaneously with the plea." Id. These are "(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. If a defendant wishes to challenge the voluntary or intelligent character of the plea, defendant must first move in the trial court to withdraw the plea. Id. "If the action of the trial court on such motion were adverse to the defendant, it would be subject to review on direct appeal." Id. 1

The question then, is what showing a defendant must make in order to obtain a belated direct appeal of a judgment of conviction entered after a guilty or no contest plea.

In my view defendant must show (1) that he made a timely request for an appeal; (2) that his appellate issue falls within one of the Robinson exceptions; and (3) that there is a basis in the record which supports one of the Robinson exceptions.

Defendant in...

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13 practice notes
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...have taken the same approach as the court in Bridges. See, e.g., Thomas v. State, 626 So.2d 1093 (Fla. 1st DCA 1993); Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997); Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996); Zduniak v. State, 620 So.2d 1083 (Fla. 2d DCA Bridges and its proge......
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • May 27, 1999
    ...1998) (en banc), which certified conflict with the decisions in Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987), Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997), Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996), and Zduniak v. State, 620 So.2d 1083 (Fla. 2d DCA 1993). We have jur......
  • Walker v. State, No. 99-948.
    • United States
    • Court of Appeal of Florida (US)
    • August 4, 1999
    ...belated appeal granted. -------- Notes: 1. The supreme court explicitly disapproved this court's earlier decisions in Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997), and Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996). The Trowell decision has also necessarily disapproved this cour......
  • Gonzalez v. Singletary, No. 98-444
    • United States
    • Court of Appeal of Florida (US)
    • July 1, 1998
    ...to appeal, he nonetheless requested that his trial counsel take an appeal. We deny the belated appeal on authority of Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997), and Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996). "[A] careful review of the record reveals that the defendant pl......
  • Request a trial to view additional results
13 cases
  • Trowell v. State, No. 95-3082
    • United States
    • Court of Appeal of Florida (US)
    • January 20, 1998
    ...have taken the same approach as the court in Bridges. See, e.g., Thomas v. State, 626 So.2d 1093 (Fla. 1st DCA 1993); Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997); Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996); Zduniak v. State, 620 So.2d 1083 (Fla. 2d DCA Bridges and its proge......
  • State v. Trowell, No. 92,393.
    • United States
    • United States State Supreme Court of Florida
    • May 27, 1999
    ...1998) (en banc), which certified conflict with the decisions in Bridges v. Dugger, 518 So.2d 298 (Fla. 2d DCA 1987), Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997), Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996), and Zduniak v. State, 620 So.2d 1083 (Fla. 2d DCA 1993). We have jur......
  • Walker v. State, No. 99-948.
    • United States
    • Court of Appeal of Florida (US)
    • August 4, 1999
    ...belated appeal granted. -------- Notes: 1. The supreme court explicitly disapproved this court's earlier decisions in Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997), and Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996). The Trowell decision has also necessarily disapproved this cour......
  • Gonzalez v. Singletary, No. 98-444
    • United States
    • Court of Appeal of Florida (US)
    • July 1, 1998
    ...to appeal, he nonetheless requested that his trial counsel take an appeal. We deny the belated appeal on authority of Gonzalez v. State, 685 So.2d 975 (Fla. 3d DCA 1997), and Loadholt v. State, 683 So.2d 596 (Fla. 3d DCA 1996). "[A] careful review of the record reveals that the defendant pl......
  • Request a trial to view additional results

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