Pittman v. State, 79-642

Decision Date17 October 1979
Docket NumberNo. 79-642,79-642
Citation382 So.2d 1227
PartiesJames R. PITTMAN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Appeal from Circuit Court, Pinellas County; Robert E. Beach, Judge.

Jack O. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.


Appeal dismissed under the authority of Brown v. State, 376 So.2d 382 (Fla. 1979).

GRIMES, C. J., and HOBSON and BOARDMAN, JJ., concur.



The appellant pled nolo contendere to a charge of manslaughter reserving his right to appeal the denial of a motion to suppress certain evidence. His appeal was dismissed because on the record before us the issue of whether the motion to suppress should have been granted did not appear to be dispositive of the case. Appellant asks for a clarification concerning whether he would now be permitted to withdraw his plea since he was unable to obtain appellate review of the propriety of the denial of his motion to suppress. He refers to the following statement in Brown v. State, 376 So.2d 382 (Fla. 1979), the case upon which the dismissal was predicated.

Due to the varying pronouncements of the law in this area, and in order to eliminate any possibility of prejudice, petitioner will be given the opportunity to withdraw his plea of nolo contendere and plead anew if he so desires.

The state says that by pleading nolo contendere the appellant admitted that the state could prove its case and that should he now be permitted to withdraw his plea, he would be able to "have his cake and eat it too." The state further notes that it "may be substantially prejudiced in proving its case by the lapse of time."

Before the rendition of the Brown opinion there were decisions to the effect that appellate review of issues arising out of a plea of nolo contendere could be obtained only if the issues were dispositive of the case. See First Amendment Foundation of Florida, Inc. v. State, 364 So.2d 450 (Fla. 1978); Tiller v. State, 330 So.2d 792 (Fla. 1st DCA 1976). On the other hand, since the supreme court concluded that Brown, himself, should have the right to withdraw his plea of nolo contendere, we find it difficult to say that this appellant who entered his plea prior to the Brown decision should not also have the same right. We are concerned, however, by the state's suggestion that by reason of the lapse of time it may not now be able to prove its case, whereas presumably it would have been in a position to do so had the appellant pled not guilty and the case had gone to trial in due course.

In an effort to be fair to appellant and yet not place the state in any worse position than it would have been had the appellant not chosen to enter a nolo contendere plea, we have concluded to leave the question up to the trial court. We, therefore, relinquish jurisdiction for a period of thirty days with directions that the court hold a hearing to determine whether, in fact, the ruling on the motion to suppress was dispositive of the case and advise ...

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6 cases
  • Finney v. State
    • United States
    • Florida District Court of Appeals
    • October 5, 1982
    ...an Ashby plea entered before the date of its decision. Accord, Kjersgaard v. State, 383 So.2d 763 (Fla. 2d DCA 1980); Pittman v. State, 382 So.2d 1227 (Fla. 2d DCA 1980); Gray v. State, 381 So.2d 302 (Fla. 2d DCA 1980); Arnold v. State, 379 So.2d 1003 (Fla. 2d DCA 1980). A defendant's under......
  • Gibson v. State
    • United States
    • Florida District Court of Appeals
    • August 5, 1980
    ...establish that it has been prejudiced by the subsequent delay. See, Basten v. State, 382 So.2d 1362 (Fla. 2d DCA 1980); Pittman v.State, 382 So.2d 1227 (Fla. 2d DCA 1980); McCowen v. State, 381 So.2d 284 (Fla. 3d DCA Appeal dismissed. ...
  • Gainey v. State, 79-1462
    • United States
    • Florida District Court of Appeals
    • November 12, 1980
    ...prejudice as a result of the delay caused by this appeal. See Gray v. State, 381 So.2d 302 (Fla.2d DCA 1980), and Pittman v. State, 382 So.2d 1227 (Fla.2d DCA 1980). LETTS, C. J., and GLICKSTEIN, J., ...
  • Gray v. State, 79-712
    • United States
    • Florida District Court of Appeals
    • March 12, 1980
    ...any such motion unless the state is able to establish prejudice as a result of the delay caused by this appeal. See Pittman v. State, 382 So.2d 1227, (Fla.2d DCA, 1980). GRIMES, C. J., BOARDMAN and RYDER, JJ., 1 As a matter of law, the ruling on appellant's motion to suppress his confession......
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