Turner v. State

Decision Date22 December 1982
Docket NumberNo. AL-173,AL-173
Citation429 So.2d 318
PartiesErnest TURNER, Jr., Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

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

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." 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 District Court of Appeal expressly acknowledged conflicted with Hardison. As such, Coleman implicitly conflicts with our opinion in Alexander. Although the factual scenario in Coleman is distinguishable from Hardison and Alexander, we too acknowledge the apparent conflict.

AFFIRMED.

LARRY G. SMITH and SHIVERS, JJ., concur.

ON MOTION FOR REHEARING

ERVIN, Judge.

In our former opinion, filed December 22, 1982, we did not bottom our affirmance upon the specific issue raised: Whether the lower court erred in denying appellant's motion to suppress certain out of court confessions. Instead, we held that because appellant had made an inculpatory admission during the hearing on his motion to suppress out-of-court confessions, the denial of the motion to suppress was not dispositive to the validity of his conviction; therefore no basis for reversal had been demonstrated. By doing so, our opinion may have implicitly suggested that the lower court's order denying the motion to suppress was incorrectly decided. It was not.

Appellant's motion for rehearing contends that we are obliged to honor the parties' stipulation agreeing that the lower court's ruling was dispositive of all issues, and, accordingly, we may not address issues which were not included within the scope of the stipulation. Appellant relies upon two opinions from this court, Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff'd., 392 So.2d 1324 (Fla.1981), and Bibby v. State, 423 So.2d 970 (Fla. 1st DCA 1982), as supportive of his position. Although those cases do not concern the issue of whether such a stipulation should be binding upon an appellate court if it finds an independent basis for affirming the judgment imposed, we see no need to explore that area because we find the trial court's order of suppression was without error. We therefore recede from our opinion of December 22, 1982, insofar as it affirmed the judgment on the ground only that appellant had made an in-court confession during the suppression hearing. By doing so, we do not address any question of whether or not a stipulation entered into between the state and defense should be honored on appeal in those instances in which the record reveals a basis for affirmance not incorporated within the stipulation. We agree with the lower court that two of the confessions taken from the defendant, the first on July 10, 1981 in Perry, and the second on July 28, 1981 were admissible. 1

As reflected in our former opinion, appellant was not first Mirandized before being given a polygraph examination in Tallahassee on July 10, 1981. Present at that examination was the defendant's mother, who signed a form consenting for him to take...

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3 cases
  • Rivera v. State
    • United States
    • Florida District Court of Appeals
    • 26 April 1989
    ...of his Miranda rights before submitting to the polygraph examination. He cites as support for this proposition Turner v. State, 429 So.2d 318 (Fla. 1st DCA 1982), rev. denied, 440 So.2d 353 (Fla.1983), where the court stated that any incriminating statements made by the defendant during a p......
  • Weber v. State, 85-2271
    • United States
    • Florida District Court of Appeals
    • 13 August 1986
    ...So.2d 1003 (Fla. 2d DCA 1980). The only case unearthed by this court's research which actually reached the merits is Turner v. State, 429 So.2d 318 (Fla. 1st DCA 1982), where the court affirmed the lower court's judgment and sentence although it found that the lower court's denial of defend......
  • Duckworth v. State
    • United States
    • Florida District Court of Appeals
    • 24 May 1985
    ...dispositive of the case. State v. Carr, 438 So.2d 826 (Fla.1983); Cauley v. State, 444 So.2d 964 (Fla. 1st DCA 1984); Turner v. State, 429 So.2d 318 (Fla. 1st DCA 1983); Puccio v. State, 424 So.2d 85 (Fla. 1st DCA 1982); Hardison v. State, 385 So.2d 738 (Fla. 2d DCA Accordingly, the appeal ......

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