J.S. v. State

District Court of Appeal of Florida

J.S. v. State

658 So. 2d 638, 1995 Fla. App. LEXIS 7973, 1995 WL 437249

CourtDistrict Court of Appeal of Florida

DecidedJuly 26, 1995

DocketNo. 94-01708

StatusPublished

Cited by3 cases

This text of 658 So. 2d 638 (J.S. v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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J.S. v. State, 658 So. 2d 638, 1995 Fla. App. LEXIS 7973, 1995 WL 437249 (Fla. Ct. App. 1995).

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Opinion

PER CURIAM.

Appellant appeals his judgment and sentence for grand theft following his plea of nolo contendere.

[639]*639Appellant was charged with armed robbery of a residence (Count I), grand theft of an automobile (Count II), and grand theft of jewelry, a purse and currency worth more than $300 (Count III). Appellant pled guilty to Counts I and II, but contested the value of the property taken in Count III. After inquiry by appellant’s counsel, the trial court asked appellant if he would enter a plea of no contest to Count III on the basis that it was in his best interest to do so, and reserving the right to “question that further.” Appellant agreed, pled nolo to Count III and was adjudicated delinquent.

Any alleged infirmity concerning the intelligent or voluntary nature of a plea must first be raised in the trial court by a motion to withdraw the plea or a motion for post conviction relief. Robinson v. State, 373 So.2d 898 (Fla.1979); Thomas v. State, 442 So.2d 296 (Fla. 2d DCA 1983); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). Since appellant has not made a prior motion to withdraw his plea, the issue of whether his plea was voluntary cannot be entertained on appeal.

Accordingly, we dismiss this appeal without prejudice so that appellant may file the appropriate motion in the trial court.

CAMPBELL, A.C.J., and BLUE and LAZZARA, JJ., concur.

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PER CURIAM.

Appellant appeals his judgment and sentence for grand theft following his plea of nolo contendere.

[639]*639Appellant was charged with armed robbery of a residence (Count I), grand theft of an automobile (Count II), and grand theft of jewelry, a purse and currency worth more than $300 (Count III). Appellant pled guilty to Counts I and II, but contested the value of the property taken in Count III. After inquiry by appellant’s counsel, the trial court asked appellant if he would enter a plea of no contest to Count III on the basis that it was in his best interest to do so, and reserving the right to “question that further.” Appellant agreed, pled nolo to Count III and was adjudicated delinquent.

Any alleged infirmity concerning the intelligent or voluntary nature of a plea must first be raised in the trial court by a motion to withdraw the plea or a motion for post conviction relief. Robinson v. State, 373 So.2d 898 (Fla.1979); Thomas v. State, 442 So.2d 296 (Fla. 2d DCA 1983); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). Since appellant has not made a prior motion to withdraw his plea, the issue of whether his plea was voluntary cannot be entertained on appeal.

Accordingly, we dismiss this appeal without prejudice so that appellant may file the appropriate motion in the trial court.

CAMPBELL, A.C.J., and BLUE and LAZZARA, JJ., concur.

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658 So. 2d 638, 1995 Fla. App. LEXIS 7973, 1995 WL 437249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/js-v-state-fladistctapp-1995.

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