Michael v. Grimes v. State of Florida , 208 So. 3d 323 ( 2017 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MICHAEL V. GRIMES, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-782
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed January 10, 2017.
An appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.
Nancy A. Daniels, Public Defender, and Megan Lynne Long, Assistant Public
Defender, for Appellant.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney
General, for Appellee.
ON MOTION FOR REHEARING, REHEARING EN BANC,
AND CLARIFICATION
MAKAR, J.
We 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.
In 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. 1 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,
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See § 924.06 (3), Fla. Stat. (2016) (“A defendant who pleads guilty with no express
reservation of the right to appeal a legally dispositive issue, or a defendant who
pleads nolo contendere with no express reservation of the right to appeal a legally
dispositive issue, shall have no right to a direct appeal.”); Pamphile v. State, 65 So.
3d 107, 108 (Fla. 4th DCA 2011) (“[W]ithout both an express reservation of the right
to appeal and a finding that the issue is dispositive, through either a trial court's
ruling or a stipulation by the state, a defendant who pleads guilty or nolo contendere
has no right to a direct appeal.”)
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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.
For its 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.
It is 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
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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).
In 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
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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.
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