Wright v. State, 88-1129

• Decision Date: 27 July 1989
• Docket Number: No. 88-1129,88-1129
• Citation: 14 Fla. L. Weekly 1781,547 So.2d 258
• Parties: 14 Fla. L. Weekly 1781 Elliott James WRIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 258

547 So.2d 258

14 Fla. L. Weekly 1781

Elliott James WRIGHT, Appellant, v. STATE of Florida, Appellee.

No. 88-1129.

District Court of Appeal of Florida First District.

July 27, 1989.

Michael E. Allen, Public Defender, David P. Gauldin, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., William A. Hatch, Asst. Atty. Gen., for appellee.

NIMMONS, Judge.

Appellant asserts error in the trial court's denial of his motion to withdraw his nolo contendere plea. We affirm.

The trial court denied appellant's motion to suppress incriminating statements made by the appellant. The appellant then entered a plea of nolo contendere to armed burglary, sexual battery, and armed robbery. He purported to reserve the right to appeal the denial of the motion to suppress, asserting that the court's order was dispositive of the case. The prosecuting attorney, however, made it quite clear that he did not agree that the order was dispositive of the case. Whereupon, the trial judge inquired of appellant's counsel if he understood the state's position and counsel responded:

[Defense Counsel]: Yes sir, I understand the state's position.

Judge: The state is conceding that if the court's ruling on the motion to suppress happens to be reversed, then it would be up to the state as to whether or not to proceed on to trial.

[Defense Counsel]: Yes sir.

Judge: That would not be totally dispositive of the case. It would be in the state's discretion as to whether to proceed to trial or not.

[Defense Counsel]: Yes sir. For the record, we would then specifically just reserve the right to appeal the denial of the motion to suppress. And we would handle the matter if and when the DCA, if it came back erroneously or whatever.

Nothing further was mentioned regarding dispositiveness and the court subsequently accepted the nolo plea, finding that it was freely and voluntarily entered and that a factual basis supported the plea. The court deferred sentencing pending a presentence investigation.

Over three weeks later, counsel for appellant filed a motion to withdraw his nolo plea on the ground that the appellant could not, on a plea of nolo, appeal from the order denying the motion to suppress because the latter was not dispositive, contrary to what appellant had been told by his attorney. The trial court denied the motion.

A conditional, or Ashby, ¹ nolo contendere plea is permissible only when the legal issue to be determined on appeal is dispositive of the case. Brown v. State, 376 So.2d 382, 384 (Fla.1979); State v. Carr, 438 So.2d 826 (Fla.1983); Morgan v. State, 486 So.2d 1356 (Fla. 1st DCA 1986). An issue is dispositive only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case. Morgan at 1357.

Even assuming that the denial of a motion to suppress statements can be a proper subject of an Ashby nolo plea, it is clear that the appellant made no effort at the time of the tendering of the plea to have the key determination of dispositiveness made either by stipulation ² or otherwise. In fact, as above noted, the state loudly and clearly protested appellant's suggestion of dispositiveness, a protestation which was ignored by the defense. Because it was never determined that the denial of appellant's motion to suppress was dispositive, appellant's counsel could not reserve the right to appeal that issue.

Contrary to appellant's argument, this erroneous assumption made by appellant's counsel does not automatically entitle appellant to withdraw his plea of nolo contendere. Controlling on this issue is State v. Carr, 438 So.2d 826 (Fla.1983).

In Carr, the victim refused at a discovery deposition to reveal her current address. Carr moved to compel discovery or, alternatively, to exclude the victim's testimony. The trial court denied the motion. Thereafter, Carr entered a plea of nolo contendere to the robbery charge. Counsel stated that the plea was based on an understanding that the state would nolle pros the attempted first-degree murder count and, further, that Carr reserved the right to appeal the denial of the motion to compel discovery or to exclude testimony. The state responded that it did not agree that the reserved issue was dispositive of the case. Carr's counsel reiterated that the record should be clear that the defendant reserved the right to appeal the denial of the motion. Thereafter, the court adjudicated Carr guilty and imposed sentence.

Carr appealed the judgment and sentence. The state moved to dismiss the appeal on the ground that the reserved issue was not dispositive of the case. The Fourth District Court granted the state's motion to dismiss but remanded with directions that Carr be allowed to file a motion to withdraw her nolo contendere plea unless the state could establish prejudice by the delay engendered by the appeal.

On review to the Florida Supreme Court, the Fourth District's dismissal of the appeal was approved but the Supreme Court quashed that portion of the order granting Carr leave to file a motion to withdraw her nolo plea. The court reiterated its holding in Brown v. State, 376 So.2d 382 (Fla.1979), that an issue is preserved for appeal on a nolo plea only if it is dispositive of the case, and held that its decision in Brown, issued in 1979, placed the defendant Carr on notice that an issue reserved for appeal must be dispositive if the right to appeal is to be...