Paulk v. State
| Decision Date | 26 June 2000 |
| Docket Number | No. 1D99-4298.,1D99-4298. |
| Parties | Harold PAULK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, and James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
In this appeal of a sentence imposed after the appellant admitted the alleged probation violations, the assistant public defender has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he cannot make a good faith argument that reversible error has occurred. After examining the briefs and the record, we affirm the sentence.
In Robinson v. State, 373 So.2d 898, 900 (Fla.1979), the supreme court affirmed the fourth district court's dismissal of an appeal after a guilty plea on the grounds that it was frivolous and contrary to the provisions of section 924.06(3), Florida Statutes (1977). It upheld the constitutionality of the statute, finding that its express preclusion of any direct appeal from a guilty plea was "directed to pretrial rulings and not to matters which may occur simultaneously with a plea of guilty or a plea of nolo contendere." It enumerated the issues which may be the proper subject of appeal in such cases (hereinafter referred to as "Robinson issues"): 1) the subject matter jurisdiction, 2) the illegality of the sentence, 3) the failure of the government to abide by the plea agreement, and 4) the voluntary and intelligent character of the plea. It rejected Robinson's contention that he had a right to a general review of the plea without a specific assertion of wrongdoing, finding that "[t]here is clearly no authority to seek an appellate review upon unknown or unidentified grounds, and it is improper to appeal on grounds known to be nonappealable," that "[t]he appeal is clearly not from any identified error which occurred contemporaneously with the plea," and that "the district court was justified in granting the motion to dismiss." Id. at 903.
In Stone v. State, 688 So.2d 1006 (Fla. 1st DCA), review denied, State v. Stone, 697 So.2d 512 (Fla.1997), the defendant had pled nolo contendere, the assistant public defender appointed to represent him had filed an Anders brief and cited Robinson, and the state had filed a motion to dismiss the appeal for lack of jurisdiction over the subject matter, based on 1996 amendments to section 924.051(4). Citing Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773 (Fla. 1996), in which the supreme court had addressed the effect of amended section 924.051(4) on Robinson, we denied the state's motion, refusing to construe the amended chapter 924 as "intended to limit appellate subject matter jurisdiction in direct criminal appeals." 688 So.2d at 1008. We stated that if, after examining the briefs and the record in such cases, we conclude that no Robinson issue exists, "we will dismiss the appeal with a citation to Robinson"; if we conclude that a Robinson issue exists and has been preserved, "we will address the merits; and if we conclude that a Robinson issue exists and has not been preserved, "we will affirm without reaching the merits." Id.
In Leonard v. State, 760 So.2d 114 (Fla.2000), the supreme court reviewed Leonard v. State, 731 So.2d 2 (Fla. 2d DCA 1998), which it found directly conflicted with this court's opinion in Stone on the question of whether section 924.051(4), Florida Statutes (Supp.1996), poses a jurisdictional bar to appellate review following the entry of a plea of guilty or nolo contendere. At oral argument, the State conceded that the second district court had erred in finding that the statute constituted a jurisdictional bar to appellate review of Leonard's sentence. The supreme court agreed with the analysis in Judge Zehmer's special concurrence in Keith v. State, 582 So.2d 1200 (Fla. 1st DCA 1991), that a dismissal of an appeal under these circumstances is not based upon a lack of subject matter jurisdiction, but...
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Hicks v. State
...we should summarily affirm in this circumstance, rather than dismiss. 760 So. 2d 114, 119 (Fla. 2000) ; see also Paulk v. State , 765 So. 2d 147, 148 (Fla. 1st DCA 2000) (applying Leonard ). But cf. Churchill , 219 So. 3d at 17 ("[T]he district courts have jurisdiction to review the merits ......
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...i.e., power to examine the case as a whole, even when an order of suppression is not necessarily dispositive."); Paulk v. State , 765 So. 2d 147, 148-49 (Fla. 1st DCA 2000) (following Leonard and affirming where the defendant did not reserve the right to appeal a dispositive ruling). But se......
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... ... Smith v. Robbins, [528 U.S. 259,]120 S.Ct. 746[, 145 L.Ed.2d 756] (2000) ... This court noted and appeared to adopt the Leonard decision in Paulk v. State, case number 1D99-4298, [765 So.2d 147] (Fla. 1st DCA June 26, 2000). However, Paulk was fully briefed prior to the issuance of Leonard and this court did not have the opportunity to implement summary affirmance pursuant to rule 9.315(a) as directed by the Florida Supreme Court in Leonard ... ...
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