County Criminal Court: APPELLATE PROCEDURE Preservation of Error Defendant pleaded no contest, but failed to preserve any issues for appellate review. Judgment and sentence affirmed. Nunn v. State, No. 05145CFAES (Fla. 6th Cir. App. Ct. February 15, 2006).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

JOSEPH NUNN,

Appellant,

v.

 

STATE OF FLORIDA, Case No: 05-145CFAES

Appellee.

________________________/

Appeal from Pasco County Court

 

County Judge Marc H. Salton

 

Timothy J. Fitzgerald, Esq.

Attorney for Appellant

 

Michael J. Harris, ASA

Attorney for Appellee

 

ORDER AND OPINION

 

THIS MATTER is before the Court on Appellant, Joseph Nunn's, appeal of the trial court's order denying a Motion to Suppress. Having reviewed the record and the briefs, this Court affirms the decision of the trial court.

On July 15, 2004, the appellant was arrested for Driving Under the Influence ("DUI") and, subsequent to his arrest, was found in possession of marijuana and marijuana paraphernalia. The appellant filed a motion to suppress and a hearing was held on December 9, 2004.

Deputy Gary Carmen testified that while conducting routine traffic control, traveling southbound on U.S. 19, he noticed the appellant's vehicle, which was traveling northbound on U.S. 19, swerve from the center lane off the roadway onto the shoulder and come to an abrupt stop. As he passed the vehicle from the opposite side of the road, he noticed the passenger in the vehicle exit the vehicle and hunch over on the shoulder of the road. The deputy testified that he continued south until he was able to make a U-turn and come back. He stated that he was approximately 35 feet away from the appellant's vehicle and had a very good view of the appellant's vehicle. Carmen explained that after turning around, he pulled behind the appellant's pickup truck and made contact to check the welfare of the person that jumped out of the vehicle and as well as the appellant. He was asked what he did with his vehicle as he pulled up and the deputy replied "I parked it in--partially in the roadway and activated my lights for safety reasons." He explained that he put his emergency flashing lights on because he was getting out on U.S. 19 and was concerned about the other traffic at that hour. Carmen testified that he does not have overhead lights on his vehicle, he has the red and blue lights in the grill and the front windshield. He testified that he turned the lights on for "safety reasons." He testified that he pulled up to check the welfare of the occupants. He said "I didn't know what was going on. I didn't know if someone was sick or needed medical attention at the time." He explained that after he stopped his vehicle, he made contact with the driver (appellant) and asked him what was going on. The deputy testified that it was the passenger that he saw who appeared to be sick. The deputy described what he saw that made him concerned, he stated "I saw him kind of hunched over on the shoulder in the grassy area, appeared to be vomiting or just finished vomiting." He explained that he made contact with the appellant and asked him the reason he pulled over. The appellant advised the deputy that his friend was sick, "had drank too much." The deputy testified that he immediately noticed a very strong odor of alcohol coming from the appellant. He noticed his eyes were glassy and bloodshot and his speech was slurred. Carmen explained that he had seen those signs before, in impaired drivers. At that point, he asked the appellant if he had been drinking and the appellant replied that he had a couple. The deputy then testified that he asked the defendant to provide a driver's license and exit the vehicle. At that point, he began field sobriety exercise. The court heard argument and denied the motion.

Appellant now appeals. On page 3 of his Initial Brief, in the section titled "Statement of Case and Facts" appellant states "[f]ollowing the denial of the motion to suppress, Nunn entered a plea of no contest to all charges specifically preserving his right to appeal the stop of his vehicle and seizure of his person, the state stipulated the motion to suppress was a dispositive issue" and directs this Court to page 16 of the record. Page 16 of the record contains the Plea Form signed by appellant. It indicates that he plead "no contest" and is signed by both appellant and his attorney; but there is no indication that appellant reserved his right to appeal. Similarly, on page 2 of its Answer Brief, the state, in its "Statement of the Case" states "[t]he defendant plead not contest to the charges reserving is right to appeal the motion." However, this Court can find no evidence in either record that appellant entered the plea(s) of nolo contendere expressly reserving his right to appeal. A defendant who pleads nolo contendere to a criminal offense waives the right to appeal the judgment entered on the plea except as to issues expressly reserved for review and a narrow range of issues relating to the validity plea and sentence. Section 924.06(3), currently provides that a defendant who pleads guilty or nolo contendere without reserving the right to appeal a legally dispositive issue has no right to appeal. See 924.06(3), Fla. Stat. (2004). Section 924.051(4), Florida Statutes (2004), prohibits the right to appeal a judgment or sentence under the same circumstances. State v. T.G.  800 So.2d 204, 206 -207 (Fla., 2001). This principle is incorporated in Rule 9.140(b)(2) of the Florida Rules of Appellate Procedure. Fla. R. App. P. 9.1409(b)(2)(A)(i) provides that a defendant who pleads nolo contendere "may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with the particularity the point of law being reserved." See also Fla. R. Crim. P. 3.172(c).

However, even if the right to appeal had been preserved, this Court finds that the initial encounter did not amount to a stop. The deputy testified that he was traveling on the opposite side of the road when he observed the defendant's vehicle swerve from the center lane off the roadway onto the shoulder and come to an abrupt stop. He testified that as he passed the vehicle, he noticed the passenger exit the vehicle and hunch over the grassy shoulder of the road. At that point, the officer turned around and activated his emergency lights not to stop, but to check on the welfare of the occupants. Accordingly, it is, therefore,

ORDERED and ADJUDGED that the ruling of the trial court is AFFIRMED.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of February, 2006.

________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

 

 

____________________

Daniel D. Diskey

Circuit Judge

 

______________________

Stanley R. Mills

Circuit Judge

 

Copies furnished to:

Timothy J. Fitzgerald, Esq.

Office of the State Attorney

County Judge Marc H. Salton