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Fuegos v. State

Florida Court of Appeals, Fifth District

July 23, 2019

VICTOR CIEN FUEGOS A/K/A SANDYMAR EFRAIN JIMENEZ, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Orange County, John Marshall Kest, Judge.

          James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

          LAMBERT, J.

         In this Anders[1] appeal, Victor Cien Fuegos challenges the judgment and sentence imposed by the trial court following his negotiated nolo contendere plea to the lesser- included charge of trafficking in methamphetamine in an amount in excess of fourteen grams but less than twenty-eight grams. As part of his written plea agreement, Fuegos sought to reserve the right to appeal the trial court's earlier denial of his motion to suppress all evidence and contraband seized by law enforcement. For the following reasons, we dismiss this appeal for lack of jurisdiction, but write to remind trial judges that if the State does not stipulate to the dispositiveness of the order, it is the duty of the trial judge to specifically determine whether a reserved issue is dispositive for purposes of appeal.

         Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) allows a defendant to file a direct appeal from a guilty or nolo contendere plea if he or she has expressly reserved the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved. Thus, for a defendant to properly pursue a direct appeal following such a plea, there must be an express reservation of the right to appeal, and the order entered must be dispositive. See also § 924.06(3), Fla. Stat. (2018) (providing that a defendant who pleads either guilty or nolo contendere without express reservation of the right to appeal a legally dispositive issue "shall have no right to a direct appeal"). Absent an express reservation of the right to appeal and a specific finding that the issue being challenged on appeal is dispositive[2] of the underlying case, an appellate court lacks jurisdiction to review, and the appeal must be dismissed. See Hawk v. State, 848 So.2d 475, 478-79 (Fla. 5th DCA 2003); Teague v. State, 728 So.2d 1203, 1203 (Fla. 5th DCA 1999); Chapin v. State, 427 So.2d 812, 812 (Fla. 5th DCA 1983).

         Here, Fuegos expressly reserved his right to appeal the denial of his motion to suppress the contraband. At the change of plea hearing, the State did not stipulate that the suppression order was dispositive. Defense counsel then asked the trial court to find that the motion to suppress was dispositive, to which the court responded that it was "not making a finding." This was incorrect because once defense counsel expressly asks for a finding of dispositiveness, it is the trial court's duty to thereafter rule. See Hawk, 848 So.2d at 478 (citing Ramsey v. State, 766 So.2d 397, 397 n.1 (Fla. 2d DCA 2000) ("It is the trial court's duty to announce whether preserved issues are dispositive.")); see also Everett v. State, 535 So.2d 667, 669 (Fla. 2d DCA 1988) (noting that a trial court's mere acknowledgement that a defendant has expressly reserved an issue for appellate review is insufficient). However, during this same change of plea hearing, the trial court later announced that based upon the State's representations, it would find that Fuegos's motion was not dispositive. Fuegos thereafter elected to proceed with his negotiated plea, which the court accepted before it imposed the agreed-upon sentence.

         Based upon the trial court's eventual finding that Fuegos's motion was not dispositive, we dismiss this appeal for lack of jurisdiction.[3]

         APPEAL DISMISSED.

          BERGER and HARRIS, JJ, concur

---------

Notes:

[1] Anders v. California, 386 U.S. 738 (1967).


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