Leisure v. State
| Decision Date | 05 April 1983 |
| Docket Number | No. AM-240,AM-240 |
| Citation | 429 So.2d 434 |
| Parties | David Ray LEISURE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Neal R. Lewis, and Richard Hersch, Miami, for appellant.
Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
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 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 to appeal all matters touching on the judgment of your guilt or innocence. However, you have reserved the right by entering this nolo contendere plea, you have reserved the right to appeal the court's ruling on your motion to suppress.
From this fact, we must conclude that appellant's conditional nolo plea was predicated on the trial court's instruction to him that by entering this plea he was not waiving the right to appeal the suppression issue. Under these circumstances, we believe that a finding of dispositiveness is implied from the record, and therefore, we do not hold that appellant has waived his right to appeal the ruling on the motion to suppress merely because the trial court failed to expressly find that the issue was dispositive.
Based on the record before us, we are unable to determine whether the ruling on the motion to suppress is in fact dispositive of this case. The record reveals that appellant admitted to another witness his participation in the crimes in question and that he also displayed to that person some stolen property which was taken during those crimes. Although this evidence causes us to seriously question whether the ruling on appellant's motion to suppress is dispositive of this case, we are unable to conclusively find the issue nondispositive because the record is devoid of any evidence to indicate whether this evidence would have been available to the State for presentation at trial. On that basis, in an effort to be fair to both appellant and the State, we have determined to leave the question up to the trial court.
Accordingly, we relinquish jurisdiction to the trial court for a period of 30 days with directions to hold a hearing to determine whether the...
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Zeigler v. State
...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 1983). We focus first upon the fact (as previously noted) that this case is here by way of a joint stipulation between appellant......
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S.T.N. v. State, 84-667
...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......
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Weber v. State, 85-2271
...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 distinguished ca......
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Everett v. State, s. 86-2692
...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......