Carlson v. State

Full title: WESLEY CARLSON, Appellant, v. STATE OF FLORIDA, Appellee.

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

Date published: Jun 19, 2020

310 So. 3d 117 (Fla. Dist. Ct. App. 2020)

Opinion

Case No. 5D19-2625

06-19-2020

Wesley CARLSON, Appellant, v. STATE of Florida, Appellee.

Charles D. Fantl, of Charles D. Fantl, Tavares, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Charles D. Fantl, of Charles D. Fantl, Tavares, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Wesley Carlson pled no contest to seventeen charges. On appeal, he argues that the trial court abused its discretion in denying his motion for a continuance and in denying, in part, his motion to withdraw his plea. We affirm.

Carlson's first argument is that the trial court¹ abused its discretion in denying his motion for a continuance without a hearing because it was putting its "need to move a court docket" before his genuine need to prepare for trial. That assertion lacks merit. The trial court had already granted Carlson five continuances in this case. One hour before Carlson's pretrial conference, his new counsel filed a notice of appearance and requested a thirty-day continuance. The trial court denied that request, explaining that the case had been set for trial for several months and that it involved a co-defendant. Despite denying the continuance, it ruled that it would set the case late in the trial period to allow Carlson's new counsel additional time to prepare. We find no abuse of discretion in the trial court's ruling.² See McKay v. State, 504 So. 2d 1280, 1282–83 (Fla. 1st DCA 1986).

1 The Honorable Don Briggs. Judge Briggs retired before Carlson's sentencing.

2 Carlson also argues that discovery deficiencies warranted a continuance. However, he never raised that argument to the trial court and thus, has failed to preserve it for appellate review. See Braddy v. State, 111 So. 3d 810, 836 (Fla. 2012) ("In order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court." (quoting Kokal v. State, 901 So. 2d 766, 778–79 (Fla. 2005) )).

Ultimately, Carlson entered a no contest plea. He argues that the trial court abused its discretion in denying his motion to withdraw that plea. At the hearing on his motion, Carlson acknowledged that the factual basis for the motion applied to only two of the counts of the plea. Thus, the trial court granted Carlson's motion as to those two counts only. We find no abuse of discretion in the trial court's denial of the motion to withdraw his plea on the remaining counts.³ See generally Wagner v. State, 895 So. 2d 453, 456–57 (Fla. 5th DCA 2005).

3 Carlson also failed to preserve his argument that his plea was not entered into freely and voluntarily, as he did not raise that argument below. See Braddy, 111 So. 3d at 836.
--------

AFFIRMED.

WALLIS and TRAVER, JJ., concur.