TG v. State, 98-1406

Citation741 So.2d 517
Decision Date15 January 1999
Docket NumberNo. 98-1406,98-1406
PartiesT.G., a child, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.

ORFINGER, M., Senior Judge.

T.G. appeals from an adjudication of delinquency and an order of disposition following pleas of no contest to felony charges and violation of community control. He contends that he was denied the constitutional right to counsel at both the plea and dispositional hearings. We agree and reverse.

Appellant was uncounseled at both the plea and dispositional hearings. At the plea hearing, the trial judge asked appellant if he wished to have an attorney appointed for him, and he replied in the negative. No further inquiry was made. At the dispositional hearing, there was no inquiry at all as to counsel. A juvenile defendant must be advised of his right to counsel, and if he chooses to waive counsel, the court must query the defendant to determine if the waiver was freely and intelligently made. Rule 8.165(b)(2), Fla. R. Juv. P. Only after a thorough inquiry has been made as required by the rule, may a plea be taken. J.O. v. State, 717 So.2d 185 (Fla. 5th DCA 1998). Counsel is required at each stage of the proceeding. Rule 8.165(a), Fla. R. Juv. P.

The state contends that the issue has not been preserved for appeal because appellant never moved the trial court to withdraw the plea, but failure to comply with Rule 8.165 is fundamental error. J.O., supra; J.R.V. v. State, 715 So.2d 1135 (Fla. 5th DCA 1998).

REVERSED.

W. SHARP and PETERSON, JJ., concur.

ON MOTION FOR REHEARING

ORFINGER, M., Senior Judge.

In its corrected motion for rehearing the state says it did not argue lack of preservation for appeal, but rather argued that this court lacked jurisdiction1 to consider the appeal because appellant had failed to file a motion in the trial court to withdraw his plea, and cites L.L. v. State, 429 So.2d 347 (Fla. 5th DCA 1983), as authority for the proposition that jurisdiction here requires that a motion to withdraw the plea be filed and denied before appellate jurisdiction can be obtained.

L.L. applied section 924.06(3),2 Florida Statutes and Florida Rule of Appellate Procedure 9.140(b)(1) to juvenile cases, but it appears to have been implicitly overruled by State v. T.M.B., 716 So.2d 269 (Fla.1998), which held that section 924.051(4) does not apply to juvenile appeals. Section 924.051(4) and section 924.06(3) are virtually identical, as is Florida Appellate Rule 9.140(b)(1) in its application here. It thus appears that the statutes and rules dealing with appeals from guilty or nolo pleas in criminal cases do not apply to similar appeals in juvenile delinquency cases. Appeals in juvenile delinquency cases are governed by the original Chapter 39 of the Florida Statutes, now transferred to Chapter 985, and by Florida Rules of Appellate Procedure 9.145. Robinson v. State, 373 So.2d 898 (Fla.1979) and Walker v. State, 565 So.2d 873 (Fla. 4th DCA 1990), also cited by the state, are criminal cases and do not apply to juvenile appeals.

REHEARING DENIED.

W. SHARP, and PETERSON, JJ., concur.

1. Preserving an issue for appeal confers subject matter jurisdiction on the appellate court. Any distinction between the two is semantical. The terms are often used interchangeably. See, e.g., White v. State, 661 So.2d 40 (Fla. 2d DCA 1995)

.

2. Section 924.06(3) states: A defendant who pleads guilty with no express reservation of the right to appeal a legally...

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6 cases
  • State v. TG
    • United States
    • Florida Supreme Court
    • October 25, 2001
    ...Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent. QUINCE, J. We have for review T.G. v. State, 741 So.2d 517 (Fla. 5th DCA 1999), which expressly and directly conflicts with the decisions in J.M.B. v. State, 750 So.2d 654 (Fla. 2d DCA 1999), J.S. v. Sta......
  • AD v. State, 98-2341.
    • United States
    • Florida District Court of Appeals
    • June 25, 1999
    ...rev. granted, 718 So.2d 169 (Fla.1998) to fundamental sentencing errors committed in juvenile proceedings. T.G. v. State, 24 Fla. L. Weekly D216, 741 So.2d 517 (Fla. 5th DCA 1999). Dispositional Order QUASHED; REVERSED and REMANDED for further DAUKSCH and COBB, JJ., concur. 1. A.D. pled gui......
  • BP v. State, 5D99-2802.
    • United States
    • Florida District Court of Appeals
    • May 26, 2000
    ...with the rule constitutes fundamental error requiring reversal. E.C.H. v. State, 751 So.2d 776 (Fla. 5th DCA 2000); T.G. v. State, 741 So.2d 517, 518 (Fla. 5th DCA 1999), review granted, 751 So.2d 1254 (Fla.2000); J.O. v. State, 717 So.2d 185, 186 (Fla. 5th DCA 1998); J.R.V. v. State, 715 S......
  • DCW v. State, 2D99-3566.
    • United States
    • Florida District Court of Appeals
    • November 3, 2000
    ...error.1 See S.S. v. State, 744 So.2d 600, 601 (Fla. 2d DCA 1999); B.P. v. State, 759 So.2d 741 (Fla. 5th DCA 2000); T.G. v. State, 741 So.2d 517 (Fla. 5th DCA 1999), review granted, 751 So.2d 1254 (Fla.2000). Accordingly, we reverse and remand this matter to the trial court with directions ......
  • Request a trial to view additional results

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