Leonard v. State, SC93332.

CourtUnited States State Supreme Court of Florida
Citation760 So.2d 114
Docket NumberNo. SC93332.,SC93332.
PartiesDavid LEONARD, Petitioner, v. STATE of Florida, Respondent.
Decision Date11 May 2000

760 So.2d 114

David LEONARD, Petitioner,
STATE of Florida, Respondent

No. SC93332.

Supreme Court of Florida.

May 11, 2000.

760 So.2d 115
James Marion Moorman, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Petitioner

Robert A. Butterworth, Attorney General, James W. Rogers, Assistant Attorney General, Tallahassee, Florida, and Helene S. Parnes, Assistant Attorney General, Tampa, Florida, for Respondent.


We have for review Leonard v. State, 731 So.2d 2 (Fla. 2d DCA 1998), which expressly and directly conflicts with the opinions in Thompson v. State, 708 So.2d 289 (Fla. 4th DCA), review dismissed, 721 So.2d 287 (Fla.1998), and Stone v. State, 688 So.2d 1006 (Fla. 1st DCA), review denied, 697 So.2d 512 (Fla.1997), on the issue of whether section 924.051(4), Florida Statutes (Supp.1996), enacted as part of the Criminal Appeal Reform Act of 1996 ("the Act"), poses a jurisdictional bar to appellate review following the entry of a plea of guilty or nolo contendere.1 We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

David Leonard pleaded guilty to one count of committing a lewd and lascivious act on a child under the age of sixteen years and two counts of attempted sexual battery on a child under the age of twelve. Leonard was initially sentenced to fifteen years of probation for the lewd and lascivious count and to thirty years imprisonment to be suspended after nine years for the attempted sexual battery counts. After serving his prison term and while serving the probationary portion of his sentence, Leonard was charged with violating the terms of his probation. Leonard pleaded nolo contendere to the charge and was thereafter sentenced to thirty years imprisonment for the lewd and lascivious count with a concurrent thirty-year sentence for the attempted sexual battery counts.

On appeal, Leonard challenged his thirty-year sentence for a lewd and lascivious act on a child as illegal because the statutory

760 So.2d 116
maximum for the offense, a second-degree felony, is fifteen years. See Leonard, 731 So.2d at 2. The Second District found that "[b]ecause Leonard pleaded guilty to the underlying offense and failed to bring this error to the trial court's attention first, pursuant to section 924.051(4), Florida Statutes (Supp.1996), we are without jurisdiction to entertain this issue on direct appeal." Leonard, 731 So.2d at 2. Accordingly, the Second District dismissed the appeal "without prejudice to Leonard to seek correction of this possible error by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(a)." Leonard, 731 So.2d at 2.2

During oral argument, the State conceded that the Second District erred on two fronts in this case. First, the State agreed that the district court erred in finding that section 924.051(4)3 constituted a jurisdictional bar to appellate review. Second, the State conceded that Leonard's sentence was illegal and subject to correction on appeal, even if not preserved for appellate review. We agree with the State's concessions of error and commend the State for its candor.4

As we explained in State v. Jefferson, 758 So.2d 661 (Fla.2000), section 924.051(3)5 of the Act does not constitute a limit on the subject matter jurisdiction of appellate courts. However, in this case, unlike the defendant in Jefferson, Leonard pleaded guilty and now challenges as illegal the sentence imposed after a violation of probation. Thus, because this case involves an appeal following a guilty plea, it presents the different question of whether section 924.051(4), governing appeals where the defendant pleaded guilty or nolo contendere, requires a result different from the one we reached in Jefferson.

As with defendants who went to trial, defendants who plead guilty have a constitutional right to appeal, although the issues that they can raise on appeal are limited. See Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103, 1104-06, 1138 (Fla.1996) (Amendments I) Seventeen years before the Legislature enacted section 924.051(4), this Court construed a similar statute and concluded that it foreclosed the right to appeal based on most matters that took place before the entry of a guilty plea. See Robinson v. State, 373 So.2d 898, 902 (Fla.

760 So.2d 117
1979).6 Despite the statutory restriction on the right to appeal, this Court held that defendants who pleaded guilty could nevertheless raise on appeal a limited number of issues that occurred contemporaneously with the entry of the plea, including: (1) lack of subject matter jurisdiction; (2) illegality of the sentence;7 (3) failure of the government to abide by a plea agreement; and (4) the voluntary and intelligent character of the plea. See Robinson, 373 So.2d at 902

In fact, when construing section 924.051(4) in Amendments I, this Court concluded that it was "directed to the same end but is worded slightly differently" than the statute construed in Robinson. Amendments I, 696 So.2d at 1105. After the enactment of section 924.051(4), we reasoned that "the principle of Robinson controls. A defendant must have the right to appeal that limited class of issues described in Robinson." Amendments I, 696 So.2d at 1105.

Ironically, despite the similar wording in these statutes, the First and Fourth District Courts of Appeal have rejected an interpretation that section 924.051(4) constitutes a jurisdictional bar requiring dismissal of the appeal. See Thompson, 708 So.2d at 290-92; Stone, 688 So.2d at 1008. However, prior to the enactment of the Act, these same district courts of appeal routinely dismissed appeals that did not present an issue cognizable under Robinson, concluding that, based on Robinson, courts lacked jurisdiction to entertain appeals where a criminal defendant pleaded guilty and the appeal did not present one of the issues recognized in Robinson. See, e.g., Keith v. State, 582 So.2d 1200, 1201 (Fla. 1st DCA 1991) (dismissing appeal for lack of jurisdiction); Ross v. State, 566 So.2d 356, 357 (Fla. 4th DCA 1990) (dismissing appeal for lack of jurisdiction because defendant mistakenly pleaded guilty, although plea colloquy revealed that defendant intended to preserve issue for appellate review and plead nolo contendere). This disposition was consistent with the pre-Act jurisprudence of the Second, Third, and Fifth Districts. See Hampton v. State, 680 So.2d 581, 583 (Fla. 3d DCA 1996) (dismissing appeal for lack of jurisdiction); Skinner v. State, 399 So.2d 1064, 1065 (Fla. 5th DCA 1981) (same); Counts v. State, 376 So.2d 59, 60 (Fla. 2d DCA 1979) (same).

While none of these opinions included a subject matter jurisdictional analysis, they concluded that under Robinson, the courts lacked jurisdiction and accordingly dismissed the appeals. However, Judge Zehmer, in a special concurrence in Keith, while agreeing that dismissal was appropriate, disagreed that the issue was one of lack of subject matter jurisdiction:

I do not read the Robinson decision as approving the dismissal of the appeal because the district court of appeal lacked jurisdiction to entertain the appeal in the sense that it lacked power to act and correct the errors raised; rather, the opinion is based on the appellant's failure to properly raise and preserve the issue for appellate review by first presenting the asserted error to the trial court for determination. Without such objection and motion being made in the trial court and obtaining a ruling thereon, the appeal presented no appropriate order for appellate review and

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