Jacksonville Appellate Lawyer

“Reservation of the Right to Appeal” Florida Rule of Appellate Procedure 9.140(b)(2)(i)

The first scenario giving rise to a permissible appeal from a guilty / nolo contendere plea involves a “reservation” of the right to appeal. Pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(i), 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.”

“Appeals Otherwise Allowed” Florida Rule of Appellate Procedure 9.140(b)(2)(ii)

Florida Rule of Appellate Procedure 9.140(b)(2)(ii) establishes the very limited circumstances a criminal defendant can appeal after entering a plea if the defendant has not reserved the right to appeal a certain issue.

Absent a reservation of the right to appeal, “a defendant who pleads guilty or nolo contendere may otherwise directly appeal only”:

• The lower tribunal's lack of subject matter jurisdiction;
• A violation of the plea agreement, if preserved by a motion to withdraw plea;
• An involuntary plea, if preserved by a motion to withdraw plea;
• A sentencing error, if preserved; or
• As otherwise provided by law.

What If There Was An Error In The Trial Court Proceedings?

If there was an error in your trial court proceedings, it does not necessarily mean that you will obtain relief on appeal. Even if an error was made in the trial court, two concepts are critical to understand in evaluating the likelihood of success on appeal in a criminal case.

1. Preservation of Error – if an error was made in the trial court proceedings, it needs to have been “preserved.” That means the error must have been brought to the trial court’s attention, or else it is considered waived or forfeited, and except in the rarest of circumstances, an appellate court will not provide relief for an unpreserved error. Here are 3 quick “preservation of error” concepts important to bear in mind in criminal appeals:
   1. Any argument raised on appeal must have been preserved in the proceedings below, unless it rises to the level of “fundamental error.” To constitute fundamental error, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown v. State, 124 So. 2d 481, 484 (Fla. 1960).
   2. To preserve an issue for appellate review, the specific legal argument must be presented to the trial court. For an objection to preserve an argument for appeal, it must be made contemporaneously and specifically. This is another highly fact-specific inquiry that depends on context.
   3. Sentencing errors are not reviewable on direct appeal unless they are preserved in the trial court, either by a timely objection at sentencing or by a timely filed 3.800 motion. See Brannon v. State, 850 So. 2d 452 (Fla. 2003). A motion to correct a sentence can be made either prior to an appeal, see rule 3.800(b)(1), or during an appeal, see rule 3.800(b)(2).
2. Harmless Error: To win any appeal in Florida, you must be able to establish the error you are complaining about would have made a difference had it not occurred. In criminal cases, the defendant has the initial burden of showing error; the burden then shifts to the State to show beyond a reasonable doubt that the error did not affect the outcome of the trial. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).

Given the highly technical nature of criminal appeals, early representation by an experienced attorney in Jacksonville on both the trial and appellate level is crucial to protect your rights.

For a free legal consultation, call The Law Offices of Kate Mesic at (904) 615-8950 now and arrange a time to meet with our team, or obtain a case evaluation over the phone.