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Hicks v. State

Florida Court of Appeals, First District

August 23, 2019

Edward Lamont Hicks, Appellant,
v.
State of Florida, Appellee.

          On appeal from the Circuit Court for Duval County. Waddell A. Wallace, Judge.

          Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

          ORDER ON MOTION FOR REHEARING EN BANC

         A judge of this Court requested that this cause be reheard en banc in accordance with Florida Rule of Appellate Procedure 9.331(d). All judges in regular active service have voted on the request. Less than a majority of those judges voted in favor of rehearing en banc. Accordingly, the request for rehearing en banc is denied.

          Ray, C. J, and Wolf, Lewis, BL Thomas, Roberts, Rowe, Osterhaus, Winokur, and Jay, JJ, concur.

          Winokur, J, concurs in an opinion in which Wolf, Lewis, B.L. Thomas, Roberts, and Rowe, JJ., join.

          Makar, Bilbrey, Kelsey, and M.K. Thomas, JJ., dissent.

          Makar, J., dissents in an opinion in which Kelsey, J. joins.

          Winokur, J., concurring in denial of rehearing en banc.

         I agree that Hicks has failed to show that en banc consideration is appropriate. While I do not wish to belabor points made in the panel majority opinion, I find that some points raised in the consideration for en banc rehearing merit further explication. I agree with the panel majority that Hicks has improperly appealed a nondispositive issue, but the concept of dispositiveness deserves further comment. The same is true for the proposition that the State's stipulation in this case permits review. More fundamentally, even if this case presented no issue with dispositiveness or reservation, Hicks would still be entitled to no relief because he has misinterpreted the retroactivity of section 776.032(4), Florida Statutes (2017).

         1. Dispositiveness

         The scope of the right to appeal a judgment or sentence following a guilty or no-contest plea is clear: such an appeal is prohibited "without expressly reserving the right to appeal a legally dispositive issue." § 924.051(4), Fla. Stat. The applicable procedural rule sets forth the same requirements. Fla. R. App. P. 9.140(b)(2)(A)(i) (adding that a defendant who wishes to appeal following a guilty or no-contest plea must "identify[] with particularity the point of law being reserved").[1] The requirement that an issue appealed following a guilty plea be dispositive is no mere procedural hurdle placed before defendants to limit review. Instead, it is necessary to effectuate the overriding rule that a guilty plea ends proceedings in the trial court. The dispositiveness requirement ensures that, regardless of whether the defendant wins or loses on appeal, the proceedings in the trial court ended with the plea and resulting judgment.

         The dispositiveness requirement has long been imposed to prevent "a trial even if [the defendant] prevails on appeal." Brown v. State, 376 So.2d 382, 384 (Fla. 1979). The requirement is meant to "expedite[] resolution of the controversy," by prohibiting what would amount to an "interlocutory appeal." Id. See also Tiller v. State, 330 So.2d 792, 793 (Fla. 1st DCA 1976) (holding that, without a dispositiveness requirement, "appellate courts will be placed in the untenable position of rendering advisory opinions and the disposition of criminal cases will be unacceptably delayed"). Thus, the central importance of the dispositiveness requirement is that it precludes any further proceedings following appeal. This rule makes sense, since the defendant has already entered a guilty or no-contest plea. Further proceedings in the trial court would be inconsistent with the finality inherent in such a plea. See Milliron v. State, 44 Fla.L.Weekly D1475 (Fla. 1st DCA June 7, 2019) (finding the issue nondispositive because, even if relief were granted on some counts, "there will still be a 'trial of the case' or further proceedings for the remaining counts"); Sloss v. State, 917 So.2d 941, 942 (Fla. 5th DCA 2005) ("These motions . . . are in no way dispositive as a reversal would merely result in remand for further proceedings, including the possibility of a trial."); Martinez v. State, 420 So.2d 637, 638 n.2 (Fla. 3d DCA 1982) ("The test for dispositiveness . . . is whether our decision in favor of either party would end the case.").

         This intent to prevent further trial-court proceedings is so strong that even an issue that is not in fact dispositive of the case may be appealed, as long as the State stipulates that no further proceedings will follow an appeal. See Churchill v. State, 219 So.3d 14, 18 (Fla. 2017) (noting that "the appellate court's ruling on the issue reserved for review, even one that is not legally dispositive as contemplated by Brown, will bring an end to the litigation") (emphasis added). Again, the central value of this rule is that an appeal "will bring an end to the litigation." Id. This is true regardless of whether the appealed issue can be properly characterized as "dispositive," because the State can stipulate to the appeal of a ...


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