Hicks v. State
| Decision Date | 23 August 2019 |
| Docket Number | No. 1D17-1830,1D17-1830 |
| Parties | EDWARD LAMONT HICKS, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
On appeal from the Circuit Court for Duval County.
A judge of this Court requested that this cause be reheard en banc in accordance with Florida Rule of Appellate Procedure 9.331(d). All judges in regular active service have voted on the request. Less than a majority of those judges voted in favor of rehearing en banc. Accordingly, the request for rehearing en banc is denied.
WINOKUR, J., concurring in denial of rehearing en banc.
I agree that Hicks has failed to show that en banc consideration is appropriate. While I do not wish to belabor points made in the panel majority opinion, I find that some points raised in the consideration for en banc rehearing merit further explication. I agree with the panel majority that Hicks has improperly appealed a nondispositive issue, but the concept of dispositiveness deserves further comment. The same is true for the proposition that the State's stipulation in this case permits review. More fundamentally, even if this case presented no issue with dispositiveness or reservation, Hicks would still be entitled to no relief because he has misinterpreted the retroactivity of section 776.032(4), Florida Statutes (2017).
The scope of the right to appeal a judgment or sentence following a guilty or no-contest plea is clear: such an appeal is prohibited "without expressly reserving the right to appeal a legally dispositive issue." § 924.051(4), Fla. Stat. The applicable procedural rule sets forth the same requirements. Fla. R. App. P. 9.140(b)(2)(A)(i) ().1 The requirement that an issue appealed following a guilty plea be dispositive is no mere procedural hurdle placed before defendants to limit review. Instead, it is necessary to effectuate the overriding rule that a guilty plea ends proceedings in the trial court. The dispositiveness requirement ensures that, regardless of whether the defendant wins or loses on appeal, the proceedings in the trial court ended with the plea and resulting judgment.
The dispositiveness requirement has long been imposed to prevent "a trial even if [the defendant] prevails on appeal." Brown v. State, 376 So. 2d 382, 384 (Fla. 1979). The requirement is meant to "expedite[] resolution of the controversy," by prohibiting what would amount to an "interlocutory appeal." Id. See also Tiller v. State, 330 So. 2d 792, 793 (Fla. 1st DCA 1976) (). Thus, the central importance of the dispositiveness requirement is that it precludes any further proceedings following appeal. This rule makes sense, since the defendant has already entered a guilty or no-contest plea. Further proceedings in the trial court would be inconsistent with the finality inherent in such a plea. See Milliron v. State, 44 Fla. L. Weekly D1475 (Fla. 1st DCA June 7, 2019) (); Sloss v. State, 917 So. 2d 941, 942 (Fla. 5th DCA 2005) (); Martinez v. State, 420 So. 2d 637, 638 n.2 (Fla. 3d DCA 1982) ().
This intent to prevent further trial-court proceedings is so strong that even an issue that is not in fact dispositive of the case may be appealed, as long as the State stipulates that no further proceedings will follow an appeal. See Churchill v. State, 219 So. 3d 14, 18 (Fla. 2017) () (emphasis added). Again, the central value of this rule is that an appeal "will bring an end to the litigation." Id. This is true regardless of whether the appealed issue can be properly characterized as "dispositive," because the State can stipulate to the appeal of a nondispositive issue. Put another way, the State can waive the requirement that an appealed issue be dispositive, but if it does, the appeal still must end the litigation.
It should be noted that Churchill did not break new ground in its ruling that the appellate court must accept a reserved issue as dispositive if the State has stipulated to dispositiveness. This rule of law has been applied in this Court for nearly forty years. In Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980), aff'd, 392 So. 2d 1324 (Fla. 1981), the State argued that the appellate court could not review a suppression issue because it was not dispositive. This Court rejected the argument because, by stipulating to the dispositiveness of the reserved issue below, it essentially waived any argument on appeal that the issue was not dispositive. Jackson, 382 So. 2d at 750. See also Zeigler v. State, 471 So. 2d 172, 176 (Fla. 1st DCA 1985) (accepting a stipulation of dispositiveness because it demonstrated that "each [party] is willing to abide by the appellate consequences" of the stipulated issue (quoting Finney v. State, 420 So. 2d 639, 642 (Fla. 3d DCA 1982)). While Churchill did reverse a contrary ruling from another district, it is a mistake to suggest that it establishes a rule of law in this district that did not already exist for decades.2
In contrast, Hicks argues that we should allow further proceedings following this appeal. At the least, Hicks argues that he is entitled to a new immunity hearing. He contends that an actual trial is "unlikely," so it meets the dispositiveness requirement. I do not agree. An appeal of a reserved issue following a guilty plea cannot constitute an "interlocutory appeal," Brown, 376 So. 2d at 384, and must "bring an end to the litigation," Churchill, 219 So. 3d at 18. In other words, following such an appeal, either the conviction must be affirmed, or the defendant is discharged. Any other resolution ignores the unmistakable meaning of the word "dispositive."3 The issue of whether the trial court erred in finding that Hicks was not entitled to immunity is plainly dispositive: if he was entitled to immunity, the prosecution is over. In this respect, the State's "stipulation" was unnecessary: the issue was dispositive whether the State stipulated to that factor not. Conversely, the question of whether the State or the defendant bears the burden of proof at the immunity hearing plainly does not dispose of the case.4,5
Again, I do not intend to rehash the majority opinion, in particular here the conclusion that Hicks did not expressly reserve the issue he raised on appeal. Suffice it to say that Hicks reserved the substantive issue of his entitlement to immunity, which the trial court denied. In his written plea agreement, he reserved the "right to appeal [the] court[']s ruling on Stand Your Ground Hearing" (emphasis supplied). In no way did he even hint that the procedural issue of the applicable burden of proof for his immunity proceeding (on which the court made no "ruling") was the issue he planned to appeal.
I do not accept the contention that Hicks' reservation of his right to appeal the court's ruling denying immunity somehow encompasses the issue of the proper burden of proof at theimmunity hearing. In this respect, the concept of issue preservation is helpful in determining whether an issue has been expressly reserved. An issue is not preserved for appellate review unless it is "the specific contention asserted as legal ground for the objection, exception, or motion below." Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982). Applying this rule, an appellant has not preserved the issue of the proper burden of proof at a pretrial hearing when the appellant raised no objection to burden of proof below, but instead argued below that the order following the pretrial hearing was erroneous. This argument is not the "specific contention" asserted below. I believe this preservation analysis is appropriate to determine the scope of a reserved issue in the context presented here.6
The response to this contention seems to be that Hicks could not have foreseen the burden-of-proof issue, as the statute modifying it was enacted long after the immunity hearing. Because the burden of proof amendment is retroactive, Hicks argues he should be entitled to claim it as "expressly reserved" within the argument that the immunity finding was erroneous. I disagree, in part because I believe this formulation misconstrues the retroactivity of the burden-of-proof statute.
I conclude that the "retroactivity" of the burden-of-proof statute does not mean that it applies to a defendant in Hicks' position. An analysis of the different types of retroactivity explains why.
fundamental constitutional right There are two different ways that a newly-adopted legal requirement is retroactive. The first is that the new rule of law establishes a fundamental constitutional right that has been held to...
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