MICHAEL V. GRIMES, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Leon County. Kevin J.
A. Daniels, Public Defender, and Megan Lynne Long, Assistant
Public Defender, for Appellant.
Jo Bondi, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, for Appellee.
ON MOTION FOR REHEARING, REHEARING EN BANC, AND
grant rehearing, withdraw our previous opinion, substitute
this opinion, and affirm. Initially this appeal was dismissed
without prejudice because we determined that the entrapment
issue raised on appeal was not dispositive, thereby allowing
Appellant to seek to withdraw his plea on remand. We did so
on the basis of Morgan v. State, 486 So.2d 1356
(Fla. 1st DCA 1986), which holds that we have the power to
independently review whether a motion is dispositive for
purposes of establishing jurisdiction in this Court.
response, Appellant moved for relief from our dismissal,
noting that the parties had stipulated that his motion to
dismiss was dispositive and that he had reserved his right to
appeal the denial of his motion. He points to a line of cases in this Court
that support his position that when parties stipulate to an
issue or motion as being dispositive, the appellate court
must accept the parties' stipulation and review the
merits of the issue preserved. See Robinson v.
State, 885 So.2d 951 (Fla. 1st DCA 2004); Phuagnong
v. State, 714 So.2d 527 (Fla. 1st DCA 1998); Zeigler
v. State, 471 So.2d 172 (Fla. 1st DCA 1985); see
also Mylock v. State, 750 So.2d 144, 146 (Fla. 1st DCA
2000) ("Where the parties stipulate that an issue is
dispositive, we will not 'go behind the stipulation of
the parties in an effort to ascertain whether the issue is
truly dispositive.'") (citing Phuagnong).
Indeed, in Jackson v. State, 382 So.2d 749 (Fla. 1st
DCA 1980)-a decision affirmed by the Florida Supreme Court,
392 So.2d 1324 (Fla. 1981)-we held that where the parties had
stipulated that a confession was dispositive we were
empowered to review the appeal on the merits.
part, the State argues that the state attorney below erred in
stipulating that the motion to dismiss was dispositive, but
simultaneously notes that "[w]hen the parties stipulate
in the trial court that an issue is determinative in this
sense, the state is foreclosed from arguing otherwise on
appeal." See Griffin v. State, 753 So.2d 676,
677 (Fla. 1st DCA 2000) (citing Phuagnong). It asks
that we stand by our dismissal without prejudice or,
alternatively, if we proceed to the merits to affirm.
clear that two sets of precedent (Zeigler and
Morgan) have coexisted for decades in this
Court's jurisprudence as to the scope of power an
appellate panel has in situations involving motions to
dismiss that are claimed to be dispositive or stipulated as
such. See Beermunder v. State, 191 So.3d 1000, 1001
(Fla 1st DCA 2016) ("Two lines of inconsistent cases
have been cohabitating in our Court's jurisprudence since
the mid-1980s, making the answer murky" as to what a
panel is to do) (Makar, J, concurring in result). One says we
should not second-guess the stipulation and, instead, proceed
to the merits (Zeigler); the second says we may disagree with
a stipulation and dismiss the appeal, but allow for
withdrawal of the plea deal on remand (Morgan) (noting that
it "need not decide whether this court is bound to
consider an appeal on the merits where the state has
stipulated to dispositiveness . . . in spite of a record
which clearly shows that the state would be able to proceed
to trial regardless of the admissibility of the disputed
evidence." Morgan, 486 So.2d at 1358-59).
deciding this case, we find instructive that our supreme
court affirmed this Court's decision in Jackson v.
State, 382 So.2d 749 (Fla. 1st DCA 1980), which used an
approach-subsequently adopted in Zeigler and its progeny-that
focuses on whether the parties' stipulation as to
dispositiveness brings an end to the case, regardless of
whether the motion might later be deemed legally
non-dispositive. Most district courts follow this approach,
one that is consistent with Florida Supreme Court precedents.
See Beermunder, 191 So.3d at 1003 ("the
approach most district courts follow is consistent with
Zeigler; it is also consistent with the Florida Supreme
Court's decision in Brown v. State, 376 So.2d
382 (Fla.1979), and this Court's decision in
Jackson.") (Makar, J., concurring in result). We note
that Morgan explicitly avoided addressing whether a panel
must consider the merits of an appeal where a stipulation
exists. Morgan, 486 So.2d at 1358-59. Thus, rather
than dismiss this appeal, we address the merits of the
confession issue that Appellant and the State deemed
dispositive in this case. In doing so, we find no basis for
error and affirm. Because of the recurring nature and
uncertainty as to cases in which the State and a defendant
have stipulated to dispositiveness as the basis for an
appeal, we certify the following question as being one of
great public importance:
WHETHER AN APPELLATE COURT MUST CONSIDER THE MERITS OF A
MOTION WHERE A STIPULATION EXISTS THAT THE MOTION IS
DISPOSITIVE OR MAY IT MAKE ITS OWN INDEPENDENT DETERMINATION
OF WHETHER THE MOTION IS DISPOSITIVE AND DECLINE REVIEW IF IT
DISAGREES WITH THE STIPULATION?
BILBREY and M.K. THOMAS, JJ., CONCUR.