William Burr Milliron v. State of Florida , 274 So. 3d 1173 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D16-3889
_____________________________
WILLIAM BURR MILLIRON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Edward P. Nickinson, Judge.
June 7, 2019
WOLF, J.
Appellant challenges the denial of his motion to suppress after
entry of a negotiated plea. Because we find the resolution of
appellant’s motion is not dispositive of appellant’s case, we affirm.
Leonard v. State, 760 So. 2d 114, 118-19 (Fla. 2000). 1
1 In Leonard v. State, 760 So. 2d 114, 118-19 (Fla. 2000), the
supreme court explained that where an appeal following a plea
“does not present . . . a legally dispositive issue that was expressly
reserved for appellate review pursuant to section 924.051(4),” the
district court “should affirm summarily” rather than dismiss
because section 924.051(4) “is not a limitation on the subject
matter jurisdiction of the appellate courts, but instead is a
FACTS
Appellant filed a motion to suppress evidence obtained
pursuant to a traffic stop. The trial court denied the motion,
finding the stop was legal. Thereafter, appellant entered a
negotiated plea. Defense counsel informed the court appellant was
“reserving his right to appeal the dispositive motion to suppress,”
and the court responded, “[a]bsolutely appropriate thing to do.”
Pursuant to the plea, appellant was convicted of the lesser-
included offense of possession of methamphetamine for count 1, as
well as possession of a firearm by a convicted felon (count 2),
battery on a law enforcement officer (count 7), resisting an officer
with violence (count 8), and possession of paraphernalia (count 9),
and the State nol prossed the remaining counts. All of the charges
arose out of the same incident. The court sentenced appellant to
408 days’ time served.
DISPOSITIVE ORDER
This appeal is unauthorized because the order denying the
motion to suppress is not dispositive as to two of appellant’s
convictions - battery on a law enforcement officer and resisting
arrest with violence. 2
codification of the existing law regarding the issues that can be
addressed on appeal following a plea of guilty.” See also Ruilova v.
State, 125 So. 3d 991, 995 (Fla. 2d DCA 2013) (“[A]fter Leonard it
is clear that the appellate court has ‘jurisdiction,’ i.e., power to
examine the case as a whole, even when an order of suppression is
not necessarily dispositive.”); Paulk v. State, 765 So. 2d 147, 148-
49 (Fla. 1st DCA 2000) (following Leonard and affirming where the
defendant did not reserve the right to appeal a dispositive ruling).
But see Lewis v. State, 262 So. 3d 859, 860 (Fla. 1st DCA 2018)
(“Because Appellant pled no contest without expressly reserving the
right to appeal the ruling on his motion, we dismiss for lack of
jurisdiction.”) (emphasis added).
2 It is unclear from the limited record on appeal whether the
order was dispositive of count 4, conspiracy to sell, manufacture,
2
A defendant who enters a plea of guilty or nolo contendere has
no right to appeal unless the defendant expressly reserves the
right to appeal a dispositive order. See Fla. R. App. P.
9.140(b)(2)(A)(i) (“A defendant who pleads guilty or nolo
contendere may expressly reserve the right to appeal a prior
dispositive order of the lower tribunal, identifying particularity the
point of law being reserve.”); § 924.051(4), Fla. Stat. (“If a
defendant pleads nolo contendere without expressly reserving the
right to appeal a legally dispositive issue, or 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.”).
In this case, appellant did not obtain a stipulation of
dispositiveness from the State, nor did he ask the trial court for an
express ruling on dispositiveness. He merely informed the court
he was “reserving his right to appeal the dispositive motion to
suppress.” The court responded, “[a]bsolutely appropriate thing to
do.” This is not a specific ruling on the dispositiveness of the
motion to suppress as to all charges.
The motion to suppress, in fact, was not dispositive to the
charges of battery on a law enforcement officer or resisting an
officer with violence. Florida law “prohibits the defendant from
using violence to resist [an] arrest, even if the arrest was illegal.”
State v. Roy, 944 So. 2d 403, 407 (Fla. 3d DCA 2006) (reversing a
trial court’s order denying a motion to dismiss charges of battery
on a law enforcement officer and resisting arrest without violence
despite the fact the arrest was illegal). “If a person resists an arrest
with violence . . . the fact that the arrest was illegal is generally
irrelevant” because “‘[t]here is no right to commit a battery upon a
law enforcement officer.’” Ruggles v. State, 757 So. 2d 632, 633
(Fla. 5th DCA 2000) (quoting State v. Roux, 702 So. 2d 240, 241
(Fla. 5th DCA 1997)). Cf. B.D.H. v. State, 903 So. 2d 390, 391 (Fla.
3d DCA 2005) (“[T]he crime of resisting an officer without violence
requires proof that the arrest was lawful.”) (emphasis added); Jay
v. State, 731 So. 2d 774, 775 (Fla. 4th DCA 1999) (“[T]he law
or deliver a controlled substance. However, the State dropped that
charge as part of the plea agreement.
3
permits a person to resist an illegal arrest without violence.”)
(emphasis added).
Appellant proceeds in this appeal as if the order on his motion
to suppress were dispositive as to all of his charges. He does not
seek to limit the scope of his appeal to those charges for which the
order was dispositive. The Second and Fifth Districts have
entertained such appeals, reversing the convictions for which the
order on appeal was dispositive and affirming the remaining
counts with instructions that the defendant may choose to
withdraw from his plea and proceed to trial on the remaining
counts, including any charges the State may have dropped as part
of the plea agreement. See Hicks v. State, 852 So. 2d 954, 961 (Fla.
5th DCA 2003); Brown v. State, 224 So. 3d 806, 811 (Fla. 2d DCA
2017). See also Nelson v. State, 44 Fla. L. Weekly D615 (Fla. 2d
DCA Mar. 1, 2019) (noting the defendant appealed only the
convictions for the offenses for which the trial court’s order was
dispositive). None of these cases specifically address the issue we
discuss in this opinion. We, therefore, determine there is no direct
conflict with these decisions.
However, this piecemeal approach contradicts the purpose of
the limitation that a defendant is only permitted to appeal
dispositive rulings after entering a plea. In Brown v. State, 376 So.
2d 382, 383-84 (Fla. 1979), the supreme court explained the
purpose behind this requirement that an order be “dispositive of
the case” was to “expedite[] resolution of the controversy.”
Permitting appeals from nondispositive issues would “sanction[],
in effect, an interlocutory appeal,” after which the defendant would
still “face [] the prospect of trial . . . . The inevitable is not avoided
but merely postponed, thus further burdening the already severely
taxed resources of our courts.” Id. at 384.
Applying Brown, this court came to the widely adopted
conclusion that “[a]n issue is dispositive only if, regardless of
whether the appellate court affirms or reverses the lower court’s
decision, there will be no trial of the case.” Morgan v. State, 486 So.
2d 1356, 1357 (Fla. 1st DCA 1986) (emphasis added). Morgan and
other similar cases from this court applying this standard have
focused on whether there would still be a trial on the counts for
which the defendant argued an order was dispositive. These cases
4
did not consider the situation presented here, where an order was
clearly dispositive as to some issues but not others. Regardless,
permitting a defendant to appeal an order that is not dispositive to
all issues is effectively an interlocutory appeal. Even if this court
grants appellant relief on some counts, there will still be a “trial of
the case” or further proceedings for the remaining counts.
Thus, because appellant has not asked to proceed only on the
counts for which the order is dispositive and because doing so
would contradict the purpose of the rule limiting appeals to
dispositive orders, this appeal is procedurally barred.
The decision is AFFIRMED.
KELSEY, J., concurs in result; WINOKUR, J., concurs with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
WINOKUR, J., concurring.
I agree with the rationale and disposition of the majority
opinion. I write separately because I find that this case
underscores the need of the parties and the trial court to recognize
the appellate limitations set out in section 924.051(4), Florida
Statutes, before a defendant enters a no-contest or guilty plea
while reserving the right to appeal an issue. A defendant may only
appeal an issue after a no-contest or guilty plea if the issue is
expressly reserved and dispositive. § 924.051, Fla. Stat. Absent a
stipulation from the state, see Churchill v. State, 219 So. 3d 14, 18
(Fla. 2017), a “trial court is obligated to determine the dispositive
nature of an issue reserved for appeal.” Holden v. State, 90 So. 3d
902, 903 (Fla. 1st DCA 2012). Absent such a determination,
appellate courts are left to determine the question themselves and
potentially affirm a judgment and sentence without considering
the merits of an argument that the defendant believed would
prevail on appeal. See id. at 903-04. This disposition may
5
undermine whether the plea was appropriately entered. See id. at
904 (Benton, J., concurring) (“Whether a ruling is dispositive is a
question for the trial court, and not for us, in the first instance,
because it is imperative that the defendant’s plea be voluntary and
intelligent.”). However, the question of voluntariness of the plea is
not before us and should not be considered.
_____________________________
Andy Thomas, Public Defender, and Kasey Lacey, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Trisha Meggs Pate,
Assistant Attorney General, Tallahassee, for Appellee.
6