Levine v. State, 00-383

• Court: Court of Appeal of Florida (US)
• Parties: NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING. BRYCE LEVINE, Appellant, v. STATE OF FLORIDA, Appellee. CASE NO. 4D00-383 JANUARY TERM 2001 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT Opinion filed
• Docket Number: 4,00-383
• Decision Date: 14 February 2001

NOT FINAL UNTIL THE DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.

BRYCE LEVINE, Appellant,
v.
STATE OF FLORIDA, Appellee.

CASE NO. 4D00-383

JANUARY TERM 2001

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Opinion filed February 14, 2001

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Stanley Goldstein, Judge; L.T. Case No. 98-24470 CF10A.

Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Meredith L. Balo, Assistant Attorney General, Fort Lauderdale, for appellee.

PER CURIAM.

The appellant, Bryce Levine, appeals from his convictions, pursuant to a no contest plea, for felony driving while license suspended (DWLS) (habitual offender) and resisting arrest without violence. Appellant contends that the trial court erred in (1) denying his motion to dismiss where one of the predicate prior convictions upon which the trial court relied in declaring him a habitual offender was uncounseled, and (2) in determining that the DWLS statute is not unconstitutionally vague. We agree with the trial court and affirm.

As to appellant's first point on appeal, the argument is not preserved because it was not dispositive of the case below. An issue is preserved for appeal on a guilty plea only if it is dispositive of the case. See Zambuto v. State, 731 So. 2d 46 (Fla. 4th DCA 1999); see also Weber v. State, 492 So. 2d 1166, 1167 (Fla. 4th DCA 1986); Fla. R. App. P. 9.140(b)(2)(A). "An issue is legally dispositive 'only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case.'" Zambuto, 731 So. 2d at 46 (quoting Vaughn v. State, 711 So. 2d 64, 65 (Fla. 1st DCA 1998)).

In this case, the issue was not dispositive because, as the trial court observed, appellant had several withholds upon which his habitualization could have been based even if the challenged predicate offense was uncounseled. This court in State v. Keirn, 720 So. 2d 1085, 1090 (Fla. 4th DCA 1998), held that a withheld adjudication could be considered a "conviction" under section 322.34, Florida Statutes (1995). See also Raulerson v. State, 763 So. 2d 285 (Fla. 2000)(agreeing with this court's interpretation of the term "conviction" as it is used in the DWLS statute). Therefore, because the state could have relied on...