Kevyn Terry v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KEVYN TERRY, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-5633
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed September 16, 2014.
An appeal from the Circuit Court for Alachua County.
Stanley H. Griffis, III, Judge.
Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney
General, Tallahassee, for Appellee.
LEWIS, C.J.
In this direct appeal, Appellant, Kevyn Terry, argues that the trial court erred
in denying his unopposed motion for a continuance. Notwithstanding the State’s
concession of error, we affirm. Appellant, who pled nolo contendere to the
charged offenses, did not reserve the right to appeal the denial of his motion for a
continuance, and the order denying his motion was not dispositive. See Fla. R.
App. P. 9.140(b)(2)(A)(i) (providing that a defendant who pleads guilty or nolo
contendere may expressly reserve the right to appeal a prior dispositive order of the
lower tribunal, identifying with particularity the point of law being reserved);
Williams v. State, 134 So. 3d 975, 976 (Fla. 1st DCA 2012) (holding that although
the appellant reserved the right to challenge the competency order on appeal, the
order was not legally dispositive and was, therefore, not cognizable on appeal);
M.N. v. State, 16 So. 3d 280, 281 (Fla. 2d DCA 2009) (en banc) (affirming the
order placing the appellant on probation, which was entered pursuant to a nolo
contendere plea, because the challenged order on the appellant’s motion to
continue was not dispositive).1
AFFIRMED.
MARSTILLER, J., CONCURS; BENTON, J., DISSENTS WITH OPINION.
1
We find the dissent’s reliance upon Madison v. State, 132 So. 3d 237 (Fla. 1st
DCA 2013), to be misplaced. Although we reversed the appellant’s convictions
and sentences in that case based upon our conclusion that the trial court erred in
denying the appellant’s second motion for continuance, there was no reservation of
rights issue given that the appellant proceeded to trial instead of pleading.
2
BENTON, J., dissenting.
I would accept the state’s concession of error in this case, which involved
the denial of an initial motion for continuance filed by replacement counsel who
had actually made an appearance in the case. See generally Madison v. State, 132
So. 3d 237, 239 (Fla. 1st DCA 2013) (reversing for failure to grant a successive
motion for continuance where “replacement counsel had [reportedly] agreed to
take Madison's case if the continuance was granted”). The state’s brief asserts not
only that denial of the motion for continuance was an abuse of discretion but also
that appellant’s “plea was not voluntary.”
3