Kenneth Osborne v. State of Florida , 273 So. 3d 281 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-2765
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KENNETH OSBORNE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Okaloosa County.
Michael A. Flowers, Judge.
June 5, 2019
RAY, J.
In this direct appeal, Kenneth Osborne challenges his
judgment and sentence for lewd and lascivious conduct and video
voyeurism. Osborne pleaded no contest after he unsuccessfully
sought to suppress video from a camera obtained during the
search of his residence. The trial court adjudicated Osborne
guilty on both counts and sentenced him to fifteen years in prison
followed by five years of probation. Osborne now challenges the
denial of his motions to suppress.
In general, a defendant who pleads guilty or nolo contendere
forfeits the right to appeal the judgment entered on the plea. An
exception exists when a defendant “expressly reserve[s] the right
to appeal a prior dispositive order of the lower tribunal,
identifying with particularity the point of law being reserved.”
Fla. R. App. P. 9.140(b)(2)(A)(i); see also § 924.051(4), Fla. Stat.
(2016) (“If a defendant pleads nolo contendere without expressly
reserving the right to appeal a legally dispositive issue, or if a
defendant pleads guilty without expressly reserving the right to
appeal a legally dispositive issue, the defendant may not appeal
the judgment or sentence.”).
Here, Osborne failed to reserve the right to appeal the trial
court’s ruling on the motions to suppress, either in the written
plea agreement or during his plea colloquy. Further, the State did
not stipulate, and the trial court did not determine, that the
motions to suppress were dispositive.
Because Osborne gave up the right to challenge the denial of
his motions to suppress, we affirm. See Leonard v. State, 760 So.
2d 114, 119 (Fla. 2000) (holding that a district court should
summarily affirm “when the court determines that an appeal
does not present ... a legally dispositive issue that was expressly
reserved for appellate review”).
AFFIRMED.
B.L. THOMAS, C.J., and WINOKUR, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Bert Moore, Crestview, for Appellant.
Ashley Moody, Attorney General, and Benjamin Louis Hoffman,
Assistant Attorney General, Tallahassee, for Appellee.
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