NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TEX CORDELL FOSTER, )
)
Appellant, )
)
v. ) Case No. 2D16-3902
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed December 6, 2017.
Appeal from the Circuit Court for Lee
County; Margaret Steinbeck, Judge.
Howard L. Dimmig, II, Public Defender, and
Judith Ellis, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, for Appellee.
LaROSE, Chief Judge.
In this Anders1 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
1
Anders v. California,
386 U.S. 738 (1967).
the trial court's ruling allowing Williams2 rule evidence, the issue is not cognizable on
appeal.
Background
The 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.
On the 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.
2
See § 90.404(2)(b)(1), Fla. Stat. (2015) ("In a criminal case in which the
defendant is charged with a crime involving child molestation, evidence of the
defendant’s commission of other crimes, wrongs, or acts of child molestation is
admissible and may be considered for its bearing on any matter to which it is relevant.");
see also Williams v. State, 110 So. 2d 654 (Fla. 1959).
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Analysis
Following 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.").
Two 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
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suggestion at the plea hearing that the Williams rule order was dispositive, nor did the
trial court make such a finding.
Second, "[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 case.").
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 was 'relevant or material to some aspect of the offense being tried .
. . .' " (quoting Santiago v. State, 70 So. 3d 720, 725 (Fla. 4th DCA 2011))).
But the evidence was not necessary to obtain a conviction. Even if the
trial court excluded the Williams rule evidence, the State could have still called the
victim to testify at trial. Without commenting upon the weight afforded to the victim's
testimony, a determination for the jury, we observe that the victim's testimony, alone,
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could likely be sufficient to establish the elements of the charged offense. See §
800.04(5)(a), (b), Fla. Stat. (2015); cf. Henderson,
135 So. 3d at 1095 (stating that the
motion seeking suppression of evidence obtained from a computer tablet was not
dispositive as the State "may have [nonetheless] been able to proceed to trial" based
upon the additional evidence possessed by the State); Campbell,
386 So. 2d at 629.
Because the trial court's Williams ruling was not dispositive, it is not cognizable for this
court's review.
We therefore affirm Mr. Foster's judgment and sentence. See Leonard v.
State,
760 So. 2d 114, 119 (Fla. 2000) (holding that a district court should summarily
affirm "when the court determines that an appeal does not present . . . a legally
dispositive issue that was expressly reserved for appellate review").
Affirmed.
SILBERMAN and MORRIS, JJ., Concur.
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