Opinion
Case No.: 1D01-2319
Opinion filed September 27, 2002.
An appeal from the Circuit Court for Duval County. Lance M. Day, Judge.
James T. Miller, Jacksonville, for Appellant.
Robert A. Butterworth, Attorney General and Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.
Dwayne Lamont Harrell entered a negotiated plea reserving his right to appeal the denial of his dispositive motion to suppress. After a lengthy plea acceptance colloquy, the court passed the case for sentencing, but the transcript does not indicate whether the court formally accepted the plea. Thereafter, the appellant filed a motion to withdraw his plea. At trial, he did not argue, as he does on appeal, that he was entitled to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.172(f) because the court had not formally accepted it. The court denied the motion, rejecting the grounds raised. We affirm the denial of the motion to suppress without discussion. Finding that appellant failed to preserve his argument that the trial court did not formally accept his plea, we affirm the denial of the motion to withdraw as well.
Section 924.051(3), Florida Statutes (2000) provides that "[a]n appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not preserved would constitute fundamental error. . . ." To be "preserved," an issue, legal argument or objection must have been raised before, and ruled on by, the trial court. § 924.051(1)(b), Fla. Stat. Appellant has not alleged or argued fundamental error, and we know of no other exception to the preservation rule. Therefore, because appellant failed to preserve any argument based upon rule 3.172(f), we must affirm. To the extent that the decision in Miller v. State, 775 So.2d 394, 395 n. 1 (Fla. 4th DCA 2000), is in conflict, we hereby certify such conflict to the Florida Supreme Court. See Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv).
AFFIRMED.
BOOTH AND VAN NORTWICK, JJ., CONCUR AND BENTON, J., DISSENTS WITH WRITTEN OPINION.
At issue in the present case is the right to trial by jury in a criminal case. Florida Rule of Criminal Procedure 3.172(f) provides:
No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.
(Emphasis supplied.) Before the trial judge accepted appellant's plea, appellant filed a motion to withdraw a plea of guilty, stating grounds.
The trial court denied the motion, finding that the grounds were not good ones. On appeal, appellant argues that he need not have stated any justification whatsoever in order to have been entitled under the rule to withdraw his plea. The majority opinion does not disagree with this proposition, but holds that the failure to argue in the court below that the motion to withdraw had to be granted "without any necessary justification" precludes relief here.
In my view, the motion should have been granted, whatever grounds were or were not stated, and filing the motion was enough to preserve the point for appellate review, as was held in Miller v. State, 775 So.2d 394, 395 n. 1 (Fla. 4th DCA 2000). I cannot agree that offering "unnecessary justification" should work as a forfeiture of the right to vindicate the denial of appellant's right to withdraw the plea. Accordingly, I respectfully dissent.