ROMINGER LEGAL
Florida Case Law & Florida Court Opinions - Florida Law
Need Legal Help?
NOT FINDING WHAT YOU NEED? -CLICK HERE
This court case was taken from the Florida Court's web site. Search our site for more cases - CLICK HERE

LEGAL RESEARCH
COURT REPORTERS
PRIVATE INVESTIGATORS
PROCESS SERVERS
DOCUMENT RETRIEVERS
EXPERT WITNESSES

 

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

 
Web Rominger Legal

Legal News - Legal Headlines

 

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JULY TERM 2004

CLIFFORD BURNS,
and asked the court to proceed slowly with the

plea colloquy. When the trial court asked
Appellant,
defense counsel whether the defendant's IQ

presented a competency issue, the following
v.
occurred:


STATE OF FLORIDA,
The Court: Mr. Akins [Defense Counsel], as

part of the IQ level is there an issue of
Appellee.
competency or issue that we need to take?



Mr. Akins [Defense Counsel]: No sir, that's
CASE NO. 4D02-3075
already been -- that's already been litigated.



Mr. Amos [Prosecutor]: We've already had a
Opinion filed October 6, 2004
full hearing in front of Judge Makemson prior

to the Motion to Suppress regarding this issue
Appeal from the Circuit Court for the
or actually part of the Motion to Suppress
Nineteenth Judicial Circuit, St. Lucie County;
which we litigated all of those.
Robert R. Makemson, Judge; L.T. Case No. 99-

3167 CFB.
The Court: Okay.


Carey Haughwout, Public Defender, and
Mr. Akins [Defense Counsel]: And in my
David John McPherrin, Assistant Public
opinion --
Defender, West Palm Beach, for appellant.


The Court: Nothing's changed since then,
Charles J. Crist, Jr., Attorney General,
right. I mean nothing added has happened or
Tallahassee, and Heidi L. Bettendorf, Assistant
anything.
Attorney General, West Palm Beach, for

appellee.
Mr. Akins [Defense Counsel]: In my opinion,

Your Honor, I represented him both at the
TAYLOR, J.
original time the case was evaluated for a

competency and in my opinion I don't believe
Clifford Burns appeals the judgment and
-- I believe, in fact, he's a little bit better than
sentence entered after his no contest plea to
he was at that time. So I don't believe it's an
robbery and aggravated assault with a firearm.
issue.
He contends that the trial court committed

fundamental error by failing to hold a
Following a lengthy plea proceeding, the
competency hearing prior to accepting his plea.
defendant pled no contest to the felony offenses
We disagree and affirm.
without reserving any issue for appeal. After

sentencing, he did not file a motion to withdraw
Almost a year before the defendant's plea
his plea. He now argues on appeal that the trial
hearing, as part of proceedings relating to the
court committed fundamental error by accepting
defendant's motion to suppress his confession,
his pleas without sua sponte ordering a hearing
two experts examined the defendant and
to determine his competency to enter a plea.
concluded that he was mildly retarded but

competent to proceed to trial. At the beginning
Generally, to obtain appellate review of a plea
of the plea hearing, defense counsel advised the
of guilty or no contest, the defendant must have
trial court that the defendant had a very low IQ
specifically reserved dispositive issues for

appeal or filed a motion to withdraw the plea in
v. State, 473 So. 2d 1235 (Fla. 1985); Trujillo -
the trial court. See State v. Thompson, 735 So.
Pentate v. State , 609 So. 2d 72, 73 (Fla. 1st
2d 482, 485 (Fla. 1999); Robinson v. State, 373
DCA 1992), quashed on other grounds, 620 So.
So. 2d 898 (Fla. 1979); Liebman v. State , 853
2d 1231 (Fla. 1993). An issue relating to the
So. 2d 514 (Fla. 4th DCA 2003), review denied,
voluntary and intelligent nature of the plea falls
865 So. 2d 480 (Fla. 2004); Harriel v. State, 710
within the limited class of issues which a
So. 2d 102, 106 (Fla. 4th DCA 1998)(en banc).
defendant may raise on appeal from a guilty or

no contest plea without having specifically
As we recently stated in Liebman:
reserved the right to do so. See Strong v. State,

555 So. 2d 950, 951 (Fla. 1st DCA 1990)(citing
Appeals following a plea of guilty or no
Robinson). However, before raising such an
contest are governed by Florida Rule of
issue on appeal, the defendant must first file
Appellate Procedure 9.140(b)(2)(A), which
with the trial court a motion to withdraw the
provides that, following a plea, a defendant
plea. See Liebman. The defendant in this case
may appeal only those dispositive issues
failed to do so and is thus precluded from
specifically reserved or, if no issues were
obtaining appellate review of the judgment
reserved, the lower court's lack of subject
entered on his no contest plea.
matter jurisdiction; a violation of the plea

agreement, if preserved by motion to withdraw
The defendant argues, however, that the trial
the plea; an involuntary plea, if preserved by
court's failure to sua sponte order a competency
motion to withdraw the plea; and a sentencing
hearing constitutes fundamental error that can be
error, if preserved.
raised for the first time on appeal. We reject this

position. As the supreme court explained in
Id. at 515; see also State v. T.G., 800 So. 2d 204,
T.G., to adopt this view would effectively
206 (Fla. 2001)("`If the record raises issues
eliminate the requirement of first moving for a
concerning the voluntary or intelligent character
plea withdrawal in the trial court. See 800 So.
of the plea, that issue should first be presented to
2d at 206 (citing Robinson's rationale for
the trial court in accordance with the law and
requiring defendants to attack the validity of
standards pertaining to a motion to withdraw a
guilty pleas in the trial court before challenging
plea.'")(quoting Robinson, 373 So. 2d at 902).
the plea on direct appeal). T.G. observed that:


In this case, the defendant did not reserve the
[W]ithout a timely filing of a motion to
right to appeal the competency issue when he
withdraw plea, "there would be no record
entered his no contest plea. More important, he
relating to the claim and there would be no
could not have reserved the right to appeal this
ruling or decisio n to review in appellate
issue because an order determinin g him
court." Rhodes v. State , 704 So. 2d 1080,
competent would not have been a dispositive
1082 (Fla. 1st DCA 1997); see also Duhart v.
order. See Fuller v. State, 748 So. 2d 292, 294
State, 548 So. 2d 302, 303 (Fla. 5th DCA
(Fla. 4th DCA 1999)(holding that a defendant's
1989)(noting that the preservation requirement
competency is not a legally dispositive issue;
"more precisely frames the issue, arguments,
thus, the appellate court lacks jurisdiction to
and factual record and thereby facilitates
consider an appeal from such issue).
appellate review").


However, the defendant could have preserved
Id. at 210.
the competency issue by first presenting it to the

trial court in a timely motion to withdraw his
In T.G., the supreme court held that the
plea. A defendant's competency at the time of
preservation rule in Robinson also applies to
entering a guilty or no contest plea is an issue
juvenile appeals. There, however, after finding
bearing upon the voluntary and intelligent
fundamental error in the trial court's failure to
character of the defendant's plea. See Trawick
provide counsel to a juvenile entering a no

2

contest plea, the supreme court allowed reversal
raises an issue concerning the voluntary or
despite the juvenile's failure to file a motion to
intelligent character of a defendant's plea that
withdraw his plea. In doing so, the court
must first be presented to the trial court in
explained that it was recognizing this "narrowly
accordance with Robinson and Liebman.
drawn and extremely limited" exception to the

Robinson preservation requirement because of
Accordingly, we affirm the judgment and
its "unique concern for juveniles who enter pleas
sentence without prejudice to the defendant's
without the benefit of counsel." 800 So. 2d at
right to seek appropriate post-conviction relief in
213. It emphasized and re-affirmed the principle
the trial court.
that in most other cases involving a challenge to

the voluntariness of a plea, the procedure in
GUNTHER and STEVENSON, JJ., concur.
Robinson must be followed. See id.


NOT FINAL UNTIL DISPOSITION OF ANY
In this case, the defendant urges us to
TIMELY FILED MOTION FOR REHEARING.
disregard his noncompliance with Robinson and
find fundamental error in the trial court's failure
to order a competency hearing. He correctly
argues that a defendant has a due process right to
a determination of competency to proceed to
trial whenever it appears reasonably necessary.
See Drope v. Missouri, 420 U.S. 162 (1975);
Pate v. Robinson, 383 U.S. 375 (1966); Dusky v.
United States, 362 U.S. 402 (1960). Florida
Rule of Criminal Procedure 3.210(b)
implements this right and requires the trial court
to order a competency hearing on its own
motion whenever it has reasonable grounds to
believe that the defendant is not competent to
proceed. See Lane v. State, 388 So. 2d 1022,
1025 (Fla. 1980). A trial court's failure to order
a competency hearing on its own motion when it
has a reasonable ground to believe that the
defendant is not mentally competent to proceed
constitutes an abuse of discretion. See
Robertson v. State , 699 So. 2d 1343 (Fla. 1997),
receded from on other grounds by Delgado v.
State, 776 So. 2d 233 (Fla. 2000); Fowler v.
State, 255 So. 2d 513 (Fla. 1971).

Although a trial court's failure to order a
competency hearing on its own motion when it
reasonably appears necessary constitutes an
abuse of discretion, we do not deem such error
"fundamental" so as to obviate the need for
filing a motion to withdraw in the trial court

before attacking the voluntariness of the plea on
discretion where defense counsel advised the court
appeal.1 An asserted violation of rule 3.210(b)
that the defendant's competency was not an issue and
assured the court that the defendant's ability to

understand the proceedings had actually improved
1 Even if we were to pass on the merits of this case,
since the earlier court proceedings when he was
we would be hard pressed to find an abuse of
found competent to proceed.

3

Ask a Lawyer

 

 

FREE CASE REVIEW BY A LOCAL LAWYER!
|
|
\/

Personal Injury Law
Accidents
Dog Bite
Legal Malpractice
Medical Malpractice
Other Professional Malpractice
Libel & Slander
Product Liability
Slip & Fall
Torts
Workplace Injury
Wrongful Death
Auto Accidents
Motorcycle Accidents
Bankruptcy
Chapter 7
Chapter 11
Business/Corporate Law
Business Formation
Business Planning
Franchising
Tax Planning
Traffic/Transportation Law
Moving Violations
Routine Infractions
Lemon Law
Manufacturer Defects
Securities Law
Securities Litigation
Shareholder Disputes
Insider Trading
Foreign Investment
Wills & Estates

Wills

Trusts
Estate Planning
Family Law
Adoption
Child Abuse
Child Custody
Child Support
Divorce - Contested
Divorce - Uncontested
Juvenile Criminal Law
Premarital Agreements
Spousal Support
Labor/Employment Law
Wrongful Termination
Sexual Harassment
Age Discrimination
Workers Compensation
Real Estate/Property Law
Condemnation / Eminent Domain
Broker Litigation
Title Litigation
Landlord/Tenant
Buying/Selling/Leasing
Foreclosures
Residential Real Estate Litigation
Commercial Real Estate Litigation
Construction Litigation
Banking/Finance Law
Debtor/Creditor
Consumer Protection
Venture Capital
Constitutional Law
Discrimination
Police Misconduct
Sexual Harassment
Privacy Rights
Criminal Law
DUI / DWI / DOI
Assault & Battery
White Collar Crimes
Sex Crimes
Homocide Defense
Civil Law
Insurance Bad Faith
Civil Rights
Contracts
Estate Planning, Wills & Trusts
Litigation/Trials
Social Security
Worker's Compensation
Probate, Will & Trusts
Intellectual Property
Patents
Trademarks
Copyrights
Tax Law
IRS Disputes
Filing/Compliance
Tax Planning
Tax Power of Attorney
Health Care Law
Disability
Elder Law
Government/Specialty Law
Immigration
Education
Trade Law
Agricultural/Environmental
IRS Issues

 


Google
Search Rominger Legal


 


LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!

NOW - CASE LAW - All 50 States - Federal Courts - Try it for FREE


 


Get Legal News
Enter your Email


Preview

We now have full text legal news
drawn from all the major sources!!

ADD A SEARCH ENGINE TO YOUR PAGE!!!

TELL A FRIEND ABOUT ROMINGER LEGAL

Ask Your Legal Question Now.

Pennsylvania Lawyer Help Board

Find An Attorney

TERMS OF USE - DISCLAIMER - LINKING POLICIES

Created and Developed by
Rominger Legal
Copyright 1997 - 2010.

A Division of
ROMINGER, INC.