Turner v. State, No. AL-173

• Court: Florida District Court of Appeals
• Writing for the Court: ERVIN; ERVIN
• Citation: 429 So.2d 318
• Parties: Ernest TURNER, Jr., Appellant, v. STATE of Florida, Appellee.
• Decision Date: 22 December 1982
• Docket Number: No. AL-173

Page 318

429 So.2d 318 Ernest TURNER, Jr., Appellant,
v.
STATE of Florida, Appellee. No. AL-173. District Court of Appeal of Florida,
First District. Dec. 22, 1982.
On Rehearing March 31, 1983.

Michael E. Allen, Public Defender and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.

Page 319

Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

This appeal is taken from a judgment and sentence of second degree murder entered in response to appellant's nolo contendere plea, reserving the right to appeal the allegedly dispositive issue of the denial of his motion to suppress a prior out-of-court confession. Because appellant confessed in court to his crime, the denial of the motion to suppress is not dispositive to the validity of his conviction; therefore, no basis for reversal has been presented. We affirm the judgment and sentence of the lower court.

Appellant was charged with first degree murder, stemming from a murder and robbery at a gas station in Perry, Florida. Prior to trial, appellant moved to suppress a confession made on July 10, 1981 after a polygraph examination. Appellant was advised that he had been deceitful in answering one of the polygraph examiner's questions. Thereafter, he confessed, stating that he had acted as a lookout for a gang of youths that had committed the murder; that he was located across the street from the gas station at the time of the murder, but that he did not see the actual shooting. Appellant argued that the confession was improperly obtained by law enforcement officers, because he had not been properly advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied sub nom., California v. Stewart, 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966).

At the suppression hearing, evidence of other investigation sessions was presented, including one session that occurred on July 28th, revealing that appellant admitted, contrary to his earlier statement that he had been acting as a lookout, that he had in fact been behind the gas station with the gang and had witnessed the shooting. Appellant testified in his behalf at the hearing and was asked whether the statement made on July 28th was true. Appellant replied that it was false; that he was really across the street from the gas station at the time of the murder. Later in the hearing, appellant recanted the foregoing statements, and reaffirmed that the statement made on July 28th was true, thereby effectively confessing his guilt.

The motion to suppress was denied. Appellant, his attorney and the state executed a plea offer in which appellant entered a plea of nolo contendere to second degree murder conditioned upon his right to appeal the denial of the motion to suppress. The plea offer recites that the parties regard the suppression denial as the dispositive issue in this case. Thereafter, the plea offer was accepted by the lower court.

In a case in which a defendant enters a plea of nolo contendere, an appeal may only raise an issue which is dispositive to the validity of the conviction. Brown v. State, 376 So.2d 382 (Fla.1979); Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff'd., 392 So.2d 1324 (Fla.1981); see also Puccio v. State, 7 FLW 2294 (Fla. 1st DCA, October 29, 1982), on reh., 424 So.2d 85 (Fla. 1st DCA 1982). Further, as a rule of law, issues relating to the suppression of a confession are not dispositive, unless the parties have stipulated that the issue is dispositive. Puccio, at 86 (on rehearing ); Jackson, at 750; Alexander v. State, 399 So.2d 110 (Fla. 1st DCA 1981). However, regardless of the stipulation, if this court determines that the issue raised on appeal is not dispositive, we will not consider the merits of the lower court's alleged erroneous ruling. Cf. Kjersgaard v. State, 383 So.2d 763, 764 (Fla. 2d DCA 1980).

In the case at bar, appellant's testimony that his statement of July 28th was factually correct amounted to no less than an in-court confession. The denial of the motion to suppress his prior out-of-court confessions was therefore not dispositive, and his appeal was improperly taken. Brown v. State, at 385. "Since appellant's plea was entered after finality of the Brown decision, he is not entitled to withdraw his plea even though he is unable to seek the full appellate review upon which his plea was conditioned."

Page 320

Alexander v. State, 399 So.2d at 110, citing, Hardison v. State, 385 So.2d 738 (Fla. 2d DCA 1980).

In refusing to allow appellant an opportunity to withdraw his plea, we acknowledge that our opinion appears to conflict with Coleman v. State, 417 So.2d 690, 691 (Fla. 4th DCA 1982), which the Fourth...