Keith v. StateKeith v. State
Robert A. Butterworth, Atty. Gen., James W. Rogers, Asst. Atty. Gen., Tallahassee, for appellee.
SHIVERS, Chief Judge.
Keith appeals his judgment аnd sentence. The trial court rejected a plea agreement at sentencing; and Keith argues he should be allowed to withdraw his plea of nolo contendere on the ground he was not told the trial court was not bound by the plea agreement. Hоwever, because Keith did not move to withdraw his plea in the trial court, we have no jurisdiction to review the merits of Keith‘s argument. Robinson v. State, 373 So. 2d 898 (Fla. 1979); Parker v. State, 576 So. 2d 943 (Fla. 1st DCA 1991); Harris v. State, 563 So. 2d 792 (Fla. 1st DCA 1990). Appeal dismissed.
JOANOS, J., concurs.
ZEHMER, J., specially concurs, with opinion.
ZEHMER, Judge (specially concurring).
Whilе I concur with the decision to dismiss this appeal, I feel obligated to explain my reasons for doing so in somewhat greater detail than shown in the majority opinion.
Keith was charged with two counts of sexual battery. Pursuant to negotiations, the state agreed tо drop one charge in exchange for Keith‘s plea of nolo contendere to the other. The guidelines sentencе on this plea arrangement was nine to twelve years, but the state agreed, along with defense counsel, to recommend a downward departure to three years with ten years’ probation in view of the counseling and therapy program in which he was рarticipating. Keith was arraigned and sentenced at a single hearing held March 21, 1990. Based on the agreement with the state, he entered a nolo plea, and both the defense and the state presented information supporting the recommendation for the agreed downward departure. This recommendation was also supported by the county sheriff. Pursuant to
Well, each time an offense like this comes up, this whole community is scarred by it. It‘s an affront to everyone in Wakulla County when a adult takes advantage of a 14 year old, with or without consent, or under any circumstances. I find absоlutely no excuse for it.
Judgment and sentence were entered on the date of the hearing.
On April 6, 1990, Keith‘s attorney filed a motion to reconsider sentence pursuant to
Keith contends on this appeal that the trial court erred in accepting his plea and sentencing him to twеlve years’ imprisonment without informing him of the maximum possible sentence he could receive, contrary to
I concur in the dismissal of this appeal as frivolous under the holding in Robinson v. State, 373 So. 2d 898 (Fla. 1979). In that сase the supreme court recognized that errors occurring in connection with the hearing on nolo contendere pleas and in connection with the sentencing once a defendant has been adjudicated guilty are subject to appеllate review, since only those matters occurring prior thereto are cut off by the plea unless specifically resеrved by the defendant. Rule 9.140 allows an appeal by the defendant from orders entered after final judgment or finding of guilt. In this case, there is no order entered on any motion by appellant that brought to the trial court‘s attention the matters now argued on apрeal, and thus appellant has not properly preserved these matters for review by direct appeal to this court, a procedural deficiency which renders this appeal frivolous under Robinson.
I do not read the Robinson decision as approving the dismissal of the aрpeal because the district court of appeal lacked jurisdiction to entertain the appeal in the sensе that it lacked power to act and correct the errors raised; rather, the opinion is based on the appellant‘s failure to properly raise and preserve the issue for appellate review by first presenting the asserted error tо the trial court for determination. Without such objection and motion being made in the trial court and obtaining a ruling thereon, the aрpeal presented no appropriate order for appellate review and was thus frivolous. To the extent that the majority opinion in this case and the cases cited therein suggest a complete lack of jurisdiction compels thе dismissal of the appeal, I respectfully suggest that they are inaccurate.
For reasons more fully explained recently in Caristi v. State, 578 So. 2d 769 (Fla. 1st DCA, 1991), I agree that appellant has not properly preserved the matters argued on this appeal for appellate review on direct appeal from the judgment of conviction and sentence. I would, therefore, dismiss this appeal without prejudice to these matters being raisеd and considered by the trial court in accordance with the rules of criminal procedure. See, e.g., Murray v. State, 566 So. 2d 30 (Fla. 1st DCA 1990).