Leisure v. State, No. AM-240

CourtCourt of Appeal of Florida (US)
Writing for the CourtSHIVERS
Citation429 So.2d 434
Docket NumberNo. AM-240
Decision Date05 April 1983
PartiesDavid Ray LEISURE, Appellant, v. STATE of Florida, Appellee.

Page 434

429 So.2d 434
David Ray LEISURE, Appellant,
v.
STATE of Florida, Appellee.
No. AM-240.
District Court of Appeal of Florida,
First District.
April 5, 1983.

Page 435

Neal R. Lewis, and Richard Hersch, Miami, for appellant.

Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.

SHIVERS, Judge.

This is an appeal from a judgment entered pursuant to a plea of nolo contendere adjudicating appellant guilty of one count of burglary and one count of grand theft. On appeal, appellant asserts that the trial court erred in denying his motion to suppress certain tangible evidence which was seized by the police.

It is well established that a defendant may not plead nolo contendere and specifically reserve his right to appeal unless the legal issue reserved is dispositive of the case. Brown v. State, 376 So.2d 382 (Fla.1979). Moreover, as a matter of law, a defendant may not reserve an issue involving the trial court's failure to suppress a confession absent a stipulation by the State that the issue is dispositive of the case. Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980). The reservation of an issue involving the suppression of tangible evidence, however, is another matter. Such an

Page 436

issue is not, as a matter of law, nondispositive, and it is unnecessary for a defendant to obtain a stipulation of dispositiveness from the State in order to preserve the issue for appellate review. In these and other cases where the issue reserved does not involve a confession, the trial judge has wide discretion to accept or reject a conditional nolo plea based on his perception of the dispositive nature vel non of the legal issue reserved for appeal. Moreover, his decision will be overturned only upon a showing of a clear abuse of discretion. Brown, supra.

In this case, although the trial court exercised its discretion by accepting appellant's conditional nolo plea, it failed to make an express finding on the question of whether the issue reserved on appeal was dispositive of the case. When appellant pled nolo contendere reserving his right to appeal the denial of the motion to suppress, the trial court noted on the record that the State had not stipulated to the dispositiveness of the issue reserved on appeal, and then proceeded to accept appellant's nolo plea without making an express finding as to whether the issue was dispositive of the case. Since the record contains no express finding or stipulation as to the dispositiveness of the motion to suppress, the State contends that this court is without jurisdiction to consider the suppression issue because appellant failed to properly preserve it for appeal. We cannot agree.

Although it is unclear whether the trial judge actually believed that the motion to suppress was a dispositive issue in this case, it is clear that the trial court gave appellant the impression that by entering a nolo plea he was not waiving his right to appeal the suppression issue. This is evidenced by the fact that, before accepting the nolo plea, the trial court specifically advised appellant that:

By entering this plea, you are waiving all of these constitutional rights as well as your right...

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14 practice notes
  • Zeigler v. State, No. AM-383
    • United States
    • Court of Appeal of Florida (US)
    • June 18, 1985
    ...hence would not be a proper ground for appeal on a plea of nolo contendere. Brown v. State, 376 So.2d 382 (Fla.1979); Leisure v. State, 429 So.2d 434, 435 (Fla. 1st DCA We focus first upon the fact (as previously noted) that this case is here by way of a joint stipulation between appellant ......
  • S.T.N. v. State, No. 84-667
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1985
    ...dispositive, the record should be supplemented to reflect this, and we will resume jurisdiction of the appeal. Compare Leisure v. State, 429 So.2d 434 (Fla. 1st DCA 1983), with State v. Carr, 438 So.2d 826 Next, we turn to the denial of the defendant's motion to dismiss. The sworn motion, f......
  • Weber v. State, No. 85-2271
    • United States
    • Court of Appeal of Florida (US)
    • August 13, 1986
    ...detailed recitation of the evidence it would offer at trial makes it clear that the confession was not dispositive. In Leisure v. State, 429 So.2d 434, 437 (Fla. 1st DCA 1983), appeal after remand, 437 So.2d 751 (Fla. 1st DCA 1983), the court implied a finding of dispositiveness but disting......
  • Everett v. State, Nos. 86-2692
    • United States
    • Court of Appeal of Florida (US)
    • December 21, 1988
    ...of law for appeal, the trial court is obligated to determine the dispositive nature of the reserved question. See Leisure v. State, 429 So.2d 434 (Fla. 1st DCA 1983). A trial court, as occurred here, errs if it merely acknowledges that the defendant has reserved an issue for appellate revie......
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14 cases
  • Zeigler v. State, No. AM-383
    • United States
    • Court of Appeal of Florida (US)
    • June 18, 1985
    ...hence would not be a proper ground for appeal on a plea of nolo contendere. Brown v. State, 376 So.2d 382 (Fla.1979); Leisure v. State, 429 So.2d 434, 435 (Fla. 1st DCA We focus first upon the fact (as previously noted) that this case is here by way of a joint stipulation between appellant ......
  • S.T.N. v. State, No. 84-667
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1985
    ...dispositive, the record should be supplemented to reflect this, and we will resume jurisdiction of the appeal. Compare Leisure v. State, 429 So.2d 434 (Fla. 1st DCA 1983), with State v. Carr, 438 So.2d 826 Next, we turn to the denial of the defendant's motion to dismiss. The sworn motion, f......
  • Weber v. State, No. 85-2271
    • United States
    • Court of Appeal of Florida (US)
    • August 13, 1986
    ...detailed recitation of the evidence it would offer at trial makes it clear that the confession was not dispositive. In Leisure v. State, 429 So.2d 434, 437 (Fla. 1st DCA 1983), appeal after remand, 437 So.2d 751 (Fla. 1st DCA 1983), the court implied a finding of dispositiveness but disting......
  • Everett v. State, Nos. 86-2692
    • United States
    • Court of Appeal of Florida (US)
    • December 21, 1988
    ...of law for appeal, the trial court is obligated to determine the dispositive nature of the reserved question. See Leisure v. State, 429 So.2d 434 (Fla. 1st DCA 1983). A trial court, as occurred here, errs if it merely acknowledges that the defendant has reserved an issue for appellate revie......
  • Request a trial to view additional results

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