Simmons v. State, 91-1965
| Citation | 596 So.2d 1156 |
| Decision Date | 27 March 1992 |
| Docket Number | No. 91-1965,91-1965 |
| Parties | 17 Fla. L. Weekly D829 William James SIMMONS, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and James W. Rogers, Asst. Atty. Gen., for appellee.
William James Simmons has appealed from sentencing as an habitual violent felony offender, occurring after he entered a plea of nolo contendere to ten non-violent felony charges. The state has moved to dismiss Simmons' appeal for lack of jurisdiction based on his nolo plea. We deny the motion to dismiss, and remand for correction of the sentencing documents.
As part of his plea agreement, Simmons agreed to a sentence of up to 35 years as an habitual felony offender, and the plea was accepted. At the subsequent sentencing proceeding, the state indicated that, because Simmons did not qualify as an habitual felony offender, it now sought habitual violent felony offender classification. Simmons declined an affirmative opportunity to withdraw his plea based on this change. The trial court adjudicated him guilty, and imposed 30-year terms for the 2d-degree felony convictions, each with a 10-year minimum mandatory term, and 10-year terms for the 3d-degree felony convictions, each with a 5-year minimum mandatory term.
Simmons appealed, raising the validity of his sentencing as an habitual violent felony offender. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), averring that prior case law forecloses good faith argument of error with regard to that issue. However, he points out that the sentencing documents indicate that Simmons' minimum mandatory terms were based on conviction for drug trafficking, with which he was not charged. The state moves to dismiss for lack of jurisdiction, arguing that Simmons' appeal is foreclosed by his nolo contendere plea. See Sec. 924.06(3), Fla.Stat. (a defendant who pleads nolo contendere with no express reservation of the right to appeal shall have no right to a direct appeal).
We deny the motion to dismiss. A defendant can maintain a direct appeal, despite entering a nolo plea, if he raises issues occurring at the time the plea is entered, including a question as to the legality of the sentence. Ford v. State, 575 So.2d 1335, 1337 (Fla. 1st DCA 1991). Here, Simmons' appeal raises the issue of the legality of his sentence on two grounds, to wit: 1) the propriety of his classification as an habitual violent felony offender, and 2) the imposition of minimum mandatory terms for an offense with which he was not charged and of which he was not convicted. Therefore, we find that, under Ford, we have jurisdiction to entertain Simmons' appeal, and deny the motion to dismiss.
On the merits of the appeal, we must agree with appellate counsel that there was no error in the imposition of...
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Brown v. State, 90-3048
...and (4) voluntary and intelligent character of the plea. Robinson v. State, 373 So.2d 898, 902 (Fla.1979). See also Simmons v. State, 596 So.2d 1156 (Fla. 1st DCA 1992); Pyle v. State, 596 So.2d 744 (Fla. 1st DCA 1992); Ford v. State, 575 So.2d 1335, 1337 (Fla. 1st DCA), review denied, 581 ......
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Simmons v. State
...Bureau Chief, Crim. Appeals, Asst. Atty. Gen., Tallahassee, for respondent. OVERTON, Justice. We have for review Simmons v. State, 596 So.2d 1156 (Fla. 1st DCA 1992), in which the district court certified the same questions we recently answered in the negative in Tillman v. State, 609 So.2d......