Lopez v. State
| Decision Date | 09 June 1994 |
| Docket Number | No. 82484,82484 |
| Citation | 638 So.2d 931 |
| Parties | 19 Fla. L. Weekly S304 Ramon LOPEZ, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Mark King Leban of the Law Offices of Mark King Leban, P.A., Miami, and Arturo Alvarez, Coral Gables, for petitioner.
Robert A. Butterworth, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., Miami, for respondent.
James Marion Moorman, Public Defender and Deborah K. Brueckheimer, Asst. Public Defender, Tenth Judicial Circuit, Bartow, amicus curiae for Florida Public Defender Ass'n.
William J. Sheppard and Elizabeth L. White of Sheppard and White, P.A., Jacksonville, amicus curiae for The Florida Ass'n of Crim. Defense Lawyers.
Elliot H. Scherker of Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Miami, amicus curiae for Florida Ass'n of Crim. Defense Lawyers--Miami Chapter.
We review State v. Lopez, 630 So.2d 1133 (Fla. 3d DCA 1993), in which the court certified that its decision was in conflict with State v. McAdams, 559 So.2d 601 (Fla. 5th DCA 1990), and State v. Waterman, 613 So.2d 565 (Fla. 2d DCA 1993). We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.
Lopez was charged with murder and other crimes. He moved to suppress statements made to law enforcement officers over a period of two days. His motion to suppress was granted in part, and the State took an interlocutory appeal from the order of suppression. Lopez sought to cross-appeal from that portion of the order which denied his motion to suppress with respect to his remaining statements. The district court of appeal granted the State's motion to dismiss the cross-appeal. The court held that it had no jurisdiction to entertain a cross-appeal of a defendant from that portion of the order which denied the defendant's pretrial motion to suppress.
It is clear that a defendant in a criminal case does not have the right to an interlocutory appeal. Fla.R.App.P. 9.140(b). See State ex rel. Shevin v. Pierce, 269 So.2d 664 (Fla.1972). However, the question of whether there may be a cross-appeal requires an analysis of a number of decisions. The earliest case of pertinence was State v. McInnes, 133 So.2d 581 (Fla. 1st DCA 1961), cert. denied, 139 So.2d 692 (Fla.1962), in which the State had appealed an order quashing two counts of a four-count information. The defendant cross-appealed that portion of the order denying his motion to quash the remaining counts. The State moved to dismiss the cross-appeal on the premise that there was no rule or statute which authorized a defendant to cross-appeal. In denying the State's motion, the court stated that there was nothing in the appellate rules which prohibited a criminal defendant from cross-appealing an order from which the State had filed an interlocutory appeal. Subsequently, in State v. McKinney, 212 So.2d 761 (Fla.1968), this Court was faced with a certified question which asked if a defendant could cross-appeal that portion of an order which denied his motion to suppress if the State had taken an interlocutory appeal from a portion of the same order which suppressed other evidence. We responded by approving the defendant's right to cross-appeal upon the authority of State v. McInnes.
Notwithstanding, the Third and Fourth District Courts of Appeal thereafter rendered several decisions which refused to permit a defendant to cross-appeal under similar circumstances. State v. Roberts, 415 So.2d 796 (Fla. 3d DCA 1982); State v. Ferguson, 405 So.2d 294 (Fla. 4th DCA 1981); State v. DeConingh, 396 So.2d 858 (Fla. 3d DCA 1981); State v. Clark, 384 So.2d 687 (Fla. 4th DCA), review denied, 392 So.2d 1372 (Fla.1980). These decisions were premised explicitly or implicitly upon the rationale that such cross-appeals were not authorized by the appellate rules. None of these cases mentioned either McInnes or McKinney.
Thereafter, in State v. Williams, 444 So.2d 434 (Fla. 3d DCA 1983), the Third District Court of Appeal considered the issue in more depth. The court analyzed McInnes and McKinney and acknowledged that the latter stood as controlling authority for the proposition that a criminal defendant was permitted to cross-appeal the adverse portion of an order even though there was no rule or statute which authorized a direct appeal by him from that order. However, the court reasoned that the current appellate rules, which had been adopted since McKinney, had abrogated the defendant's right to cross-appeal from an interlocutory suppression order by virtue of only making reference to cross-appeals from final orders or orders granting new trials.
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U.S. v. Williams
...307 Pa.Super. 143, 452 A.2d 1355 (1982), abrogated by Commonwealth v. Slaton, 383 Pa.Super. 301, 556 A.2d 1343 (1989); Lopez v. State, 638 So.2d 931 (Fla. 1994); and State of Wisconsin v. Thiel, 171 Wis.2d 157, 491 N.W.2d 94 (1992). These cases are inapposite, however, because irrespective ......
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Amendments to the Florida Rules of Appellate Procedure
...373 So.2d 898 (Fla.1979), and Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).] [ADDED: New subdivision (b)(4) reflects Lopez v. State, 638 So.2d 931 (Fla.1994). A defendant may cross-appeal as provided, but if the defendant chooses not to do so, the defendant retains the right to raise an......
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AMEND. TO FLA. RULES OF APPELLATE PROC.
...v. State, 373 So.2d 898 (Fla. 1979), and Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). New subdivision (b)(4) reflects Lopez v. State, 638 So.2d 931 (Fla.1994). A defendant may cross-appeal as provided, but if the defendant chooses not to do so, the defendant retains the right to raise ......
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AMEND. TO FLA. RULES OF APPELLATE PROC., SC00-718.
...v. State, 373 So.2d 898 (Fla.1979), and Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). New subdivision (b)(4) reflects Lopez v. State, 638 So.2d 931 (Fla.1994). A defendant may cross-appeal as provided, but if the defendant chooses not to do so, the defendant retains the right to raise a......
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Cross-appeals in civil cases.
...main appeal from an interlocutory order, a defendant may then raise a cross-appeal addressing any part of that order. See Lopez v. State, 638 So. 2d 931 (Fla. 1994). Conversely, if the defendant files the main appeal from a final order, the state may cross-appeal only rulings of law, but no......