Skinner v. State

399 So. 2d 1064

• Court: District Court of Appeal of Florida
• Decided: June 17, 1981
• Docket: 80-975
• Status: Published

Opinion

399 So.2d 1064 (1981)

Marcie W. SKINNER, Appellant,
v.
STATE of Florida, Appellee.

No. 80-975.

District Court of Appeal of Florida, Fifth District.

June 17, 1981.

James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, and Marcie W. Skinner, pro se, Avon Park, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Judge.

Skinner appeals from a judgment adjudicating him guilty of robbery. The public defender filed an Anders^[1] motion and brief, requesting leave to withdraw as counsel for appellant. Appellant filed a pro se brief in which he questioned the validity of his plea due to his possible incompetency at the time the plea was entered.

The appellant pled nolo contendere and failed to reserve his right to appeal any issue. By so doing appellant waived his right to appeal all matters relating to the judgment except certain appealable issues which might have occurred contemporaneously with the entry of the plea. Fla.R. App.P. 9.140(b)(1); Fla.R.Crim.P. 3.172(c)(iv). See Robinson v. State, 373 So.2d 898 (Fla. 1979). This limited class of issues set out in Robinson includes "the voluntary and intelligent character of the plea." However, Robinson provides that an appeal from a guilty plea should never be a substitute for a motion to withdraw a plea and such issues should first be presented to the trial court. This court has held that the same principle applies to a plea of nolo contendere entered without a reservation of the right to appeal. In the Interest of: S.C. v. State, 388 So.2d 643 (Fla. 5th DCA 1980).

Appellant did not seek to withdraw his plea before the trial court. Therefore, we have no jurisdiction to entertain this appeal. Accordingly, the appeal is dismissed without prejudice to appellant to seek appropriate collateral relief in the trial court. Gastineau v. State, 398 So.2d 492 (Fla. 5th DCA 1981); In the Interest of: S.C. v. State, 388 So.2d 643 (Fla. 5th DCA 1980); Johnson v. State, 388 So.2d 621 (Fla. 5th DCA 1980).

The public defender's motion to withdraw is hereby granted.

DISMISSED.

ORFINGER and COWART, JJ., concur.

NOTES

[1] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).