J.W. v. State, Case No. 2D19-1262

• Court: Court of Appeal of Florida (US)
• Writing for the Court: SLEET, Judge.
• Citation: 313 So.3d 909
• Parties: J.W., Appellant, v. STATE of Florida, Appellee.
• Docket Number: Case No. 2D19-1262
• Decision Date: 17 March 2021

313 So.3d 909

J.W., Appellant,
v.
STATE of Florida, Appellee.

Case No. 2D19-1262

District Court of Appeal of Florida, Second District.

Opinion filed March 17, 2021.

Howard L. Dimmig, II, Public Defender, and Lisa B. Lott, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Katie Lynn Salemi-Ashby, Assistant Attorney General, Tampa, for Appellee.

SLEET, Judge.

J.W.¹ entered nolo contendere pleas to resisting arrest with violence, battery on a law enforcement officer, and driving without a license. Because the trial court committed fundamental error by accepting his pleas to the felony offenses in the absence of a legally sufficient factual basis, we reverse his convictions and sentences for

313 So.3d 910

resisting arrest with violence and battery on a law enforcement officer and remand for further proceedings on those counts. We otherwise affirm his conviction and sentence for driving without a license.

At J.W.'s plea hearing, defense counsel stipulated that the police report affidavit provided a factual basis for each of the three charged offenses. That affidavit, prepared by one of the arresting officers, stated that on June 11, 2018, police responded to a trailer park and were informed by a resident that she witnessed her neighbor, J.W., drive away from the park in an SUV and return later. She further told police that she had heard from J.W.'s wife that J.W. did not have a valid driver's license. J.W.'s wife confirmed to police that he had never had a valid license. The affidavit indicated that J.W. was present in the home at the time police were there. Although not referenced in the affidavit, our record indicates that police issued J.W. a citation and a notice to appear for the misdemeanor violation.

The affidavit noted that EMS personnel were on the scene "evaluating" J.W.'s "medical issues," but no other explanation was given for their presence. The affidavit stated that J.W.'s wife informed the officer that her husband had been drinking that evening and had taken anxiety medication in a dose higher than that prescribed. The officer then informed J.W., while he sat on his couch, that he was going to be involuntarily committed for an evaluation under the Baker Act.² The affidavit did not indicate that J.W. was given any reason for why he should be subjected to a Baker Act examination or that the examination had been recommended by EMS. J.W. remained seated and made it clear that he would not voluntarily submit to the examination. The officer informed him that he needed to get on the stretcher provided by EMS, but J.W. continued to refuse. The officer then laid hands on J.W., using force to attempt to handcuff him. J.W. braced himself in an attempt to prevent being pulled up, but the officer was eventually able to pull him off the couch, and as he did, J.W. kicked the officer in the leg. J.W. was then handcuffed, transported to the hospital, evaluated, and released into police custody.

At the plea hearing below, after defense counsel stipulated to the factual basis, the trial court accepted J.W.'s pleas, finding that they were "freely, voluntarily and knowingly made" and "supported by a factual basis."

On appeal, J.W. argues that the trial court erred in accepting his pleas to the two felony counts because the police report affidavit failed to establish a sufficient factual basis for those offenses. J.W. maintains that the affidavit failed to establish a necessary element of each offense and therefore was insufficient to sustain his felony convictions. We agree.

Initially, we note that defendants who enter guilty or nolo contendere pleas without reserving the right to appeal a dispositive issue are limited on appeal to raising only those issues set forth in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii), which requires that challenges to a plea on the basis that it was involuntary be preserved by a motion to withdraw plea. Although J.W. has not filed such a motion in the instant case, "an appellate court will always consider a fundamental error that is apparent on the face of the record." See Dydek v. State, 400 So. 2d 1255, 1258 (Fla. 2d DCA 1981).

313 So.3d 911

And "the conviction of a defendant in the absence of a prima facie showing of the essential elements of the crime charged" has been recognized by Florida courts to be fundamental error. Id. (reversing conviction for possession of drug paraphernalia after entry of nolo contendere plea where factual basis did not establish all of the essential elements of the offense despite defense counsel's stipulation to the factual basis); see also Miller v. State, 988 So. 2d 138, 139 (Fla. 1st DCA 2008) ("We determine that, in those cases where the record affirmatively demonstrates the crime to which defendant pled guilty could not have occurred, fundamental error occurs."); cf. Allen v. State, 876 So. 2d 737, 740-41 (Fla. 1st DCA 2004) (granting petition for second-tier certiorari and determining circuit court "failed to comply with the established principle of law which holds that it is fundamental error to convict a defendant in the absence of a prima facie showing of the elements of the offense charged").

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