318 So. 2d 544 | Fla. Dist. Ct. App. | 1975
Lead Opinion
Appellant, defendant in the trial court, was charged by information with possession of a controlled substance (marijuana) and with possession of narcotics paraphernalia. A defense motion to suppress the evidence was denied whereupon defendant entered a plea of nolo contendere. He was adjudicated guilty and sentenced to three-years probation from whence he now appeals.
In the statement of the case contained in appellant’s brief it is stated that “The plea of nolo contendere was entered with appropriate reservation of the right to appeal the court’s failure to suppress the evidence.” There is no reference there nor elsewhere in the brief to any portion of the record-on-appeal to inform us where in the record we might find support for that statement. We have nevertheless carefully examined the entire record and find no such reservation. (See State v. Ashby, Sup.Ct.Fla.1971, 245 So.2d 225; Rule 3.6, subd. b. FAR and Rule 3.7, subd. f(3) FAR)
A nolo contendere plea admits all facts which are well pleaded and waives all formal defects in the proceeding of which the accused could have availed himself by a plea of not guilty or motion to quash. (Peel v. State, Fla.App. 2nd 1963, 150 So.2d 281; Farrell v. State, and Raulerson v. State, Fla.App. 1st 1975, 317 So.2d 142).
Finding that the record fails to reveal a reservation for appellate review (Farrell v. State, supra and Raulerson v. State, supra) the judgment and sentence appealed are
Affirmed.
Rehearing
ON REHEARING GRANTED
By per curiam opinion dated June 2, 1975 this Court affirmed the trial court as the record failed to reveal that appellant’s plea of nolo contendere was entered with an appropriate reservation of right to appeal the trial court’s failure to suppress evidence. Appellant has subsequently filed a motion for permission to supplement the record, accompanied by a petition for rehearing, alleging that as a result of clerical error there was omitted from the record-on-appeal that portion of the transcript of the proceedings in the trial court reflecting that the appellant’s nolo contendere plea was conditioned on reservation of right to appeal. Upon granting the motion for permission to supplement the record we find that the right to appeal was appropriately reserved. Accordingly, we grant the petition for rehearing and consider the case on its merits.
Having carefully examined the record-on-appeal, as supplemented, and the briefs filed by able counsel, we fail to find that appellant has demonstrated error in the trial court. On the contrary, we find ample support for the warrantless search giving rise to the motion to suppress, the denial of which is the basis of this appeal. We, accordingly,
Affirm.
BOYER, C. J., and RAWLS and McCORD, JJ., concur.