FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Lee County; Margaret Steinbeck,
L. Dimmig, II, Public Defender, and Judith Ellis, Assistant
Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, for Appellee. La
Anders appeal, Tex Cordell Foster appeals his
judgment and sentence entered after he pleaded guilty to lewd
or lascivious conduct. We have jurisdiction. See
Fla. R. App. P. 9.140(b)(1)(A), (F). We affirm his conviction
without further comment. We write to explain why, despite Mr.
Foster's express reservation of the trial court's
ruling allowing Williams rule evidence, the issue is
not cognizable on appeal.
State charged Mr. Foster with lewd or lascivious molestation,
a life felony. As the case progressed, the State filed a
Williams rule notice pursuant to section
90.404(2)(d)(1), Florida Statutes (2015). The trial court
conducted a hearing and determined that the evidence,
testimony from another child allegedly molested by Mr.
Foster, was "admissible and relevant to prove motive,
intent, and absence of mistake." The trial court
memorialized its ruling in a detailed written order.
day of trial, defense counsel announced that the parties had
negotiated a plea agreement. The State agreed to a reduced
charge and Mr. Foster agreed to an eight-year prison sentence
followed by five years of sex offender probation. Defense
counsel further declared that as "part of the plea [Mr.
Foster] is reserving the right to appeal the
Williams rule hearing." The trial court
expressed skepticism, observing that "it is an
interlocutory order . . . that would only be apparent to the
appellate court at trial." In light of its misgivings,
the trial court asked Mr. Foster whether he still wished to
proceed with his plea. Mr. Foster responded that he did.
After a thorough plea colloquy, the trial court sentenced him
in accordance with the negotiated disposition.
entry of a guilty plea, the Florida Statutes and the Florida
Rules of Appellate Procedure cabin the scope of a
defendant's appeal. Section 924.051(4), Florida Statutes
(2016), states that "if a defendant pleads guilty
without expressly reserving the right to appeal a legally
dispositive issue, the defendant may not appeal the judgment
or sentence." The Florida Rules of Appellate Procedure
provide that upon entry of a guilty plea, a defendant may
appeal "a prior dispositive order of the lower
tribunal" for which the right to appeal has been
expressly reserved. Fla. R. App. P. 9.140(b)(2)(A)(i)
(emphasis added); see also England v. State, 46
So.3d 127, 129 (Fla. 2d DCA 2010) ("Florida Rule of
Appellate Procedure 9.140(b)(2)(A)(i) states in relevant part
that a defendant may not appeal from a guilty plea except
where the defendant has expressly reserved the right to
appeal a prior dispositive order and identified with
particularity the point of law being reserved.").
barriers block Mr. Foster's attempt to appeal the
Williams rule order. First, as we have recognized in
the context of suppression motions, the parties may
stipulate, or the trial court must expressly find, that the
order is, in fact, dispositive. See Dermio v. State,
112 So.3d 551, 557 (Fla. 2d DCA 2013) ("We have
previously recognized that orders denying motions to suppress
confessions are not dispositive unless stipulated to by the
parties." (citing England, 46 So.3d at 129)).
The record reflects no such stipulation. See Henderson v.
State, 135 So.3d 1092, 1095 (Fla. 2d DCA 2013)
("Mr. Henderson made no suggestion that the motion to
suppress was dispositive at the plea hearing, the sentencing
hearing, or in the written plea agreement. Because there was
no finding or agreement that the motion was dispositive, Mr.
Henderson may not appeal the denial of the motion.").
Moreover, Mr. Foster made no suggestion at the plea hearing
that the Williams rule order was dispositive, nor
did the trial court make such a finding.
"[a]n issue is preserved for appeal on a guilty plea
only if it is dispositive of the case." Levine v.
State, 788 So.2d 379, 380 (Fla. 4th DCA 2001). "A
motion is dispositive if the State could not proceed to trial
if the defendant prevailed on the appeal of the ruling on the
motion." M.N. v. State, 16 So.3d 280, 281 (Fla.
2d DCA 2009) (en banc); see, e.g., Campbell v.
State, 386 So.2d 629, 629 (Fla. 5th DCA 1980) ("We
do not decide [the trial court's denial of
appellant's motion to suppress] because, even if we were
to reverse the order denying the suppression, the state has
other evidence and eye witness testimony with which to try
the appellant. Thus[, ] the issue is not dispositive of the
trial court's Williams rule order was not
dispositive. Even if the ruling was erroneous, the State
could, and likely would, have proceeded to trial.
Williams rule evidence is "admissible when
relevant to prove a material fact in issue, including, but
not limited to, proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident." § 90.404(2)(a); see, e.g.,
Ricketts v. State, 125 So.3d 194, 195-96 (Fla. 4th
DCA 2013) ("Because knowledge is a specific element of
[trafficking in cannabis], the evidence of the other crates
was admissible Williams rule evidence because it ...