                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

MICHAEL V. GRIMES,                   NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-782

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed January 10, 2017.

An appeal from the Circuit Court for Leon County.
Kevin J. Carroll, Judge.

Nancy A. Daniels, Public Defender, and Megan Lynne Long, Assistant Public
Defender, for Appellant.

Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney
General, for Appellee.


          ON MOTION FOR REHEARING, REHEARING EN BANC,
                      AND CLARIFICATION

MAKAR, J.

      We grant rehearing, withdraw our previous opinion, substitute this opinion,

and affirm. Initially this appeal was dismissed without prejudice because we

determined that the entrapment issue raised on appeal was not dispositive, thereby
allowing Appellant to seek to withdraw his plea on remand. We did so on the basis

of Morgan v. State, 486 So. 2d 1356 (Fla. 1st DCA 1986), which holds that we have

the power to independently review whether a motion is dispositive for purposes of

establishing jurisdiction in this Court.

      In response, Appellant moved for relief from our dismissal, noting that the

parties had stipulated that his motion to dismiss was dispositive and that he had

reserved his right to appeal the denial of his motion. 1 He points to a line of cases in

this Court that support his position that when parties stipulate to an issue or motion

as being dispositive, the appellate court must accept the parties’ stipulation and

review the merits of the issue preserved. See Robinson v. State, 885 So. 2d 951 (Fla.

1st DCA 2004); Phuagnong v. State, 714 So. 2d 527 (Fla. 1st DCA 1998); Zeigler

v. State, 471 So. 2d 172 (Fla. 1st DCA 1985); see also Mylock v. State, 750 So. 2d

144, 146 (Fla. 1st DCA 2000) (“Where the parties stipulate that an issue is

dispositive, we will not ‘go behind the stipulation of the parties in an effort to

ascertain whether the issue is truly dispositive.’”) (citing Phuagnong). Indeed,



1
 See § 924.06 (3), Fla. Stat. (2016) (“A defendant who pleads guilty with no express
reservation of the right to appeal a legally dispositive issue, or a defendant who
pleads nolo contendere with no express reservation of the right to appeal a legally
dispositive issue, shall have no right to a direct appeal.”); Pamphile v. State, 65 So.
3d 107, 108 (Fla. 4th DCA 2011) (“[W]ithout both an express reservation of the right
to appeal and a finding that the issue is dispositive, through either a trial court's
ruling or a stipulation by the state, a defendant who pleads guilty or nolo contendere
has no right to a direct appeal.”)
                                             2
in Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980)—a decision affirmed by the

Florida Supreme Court, 392 So. 2d 1324 (Fla. 1981)—we held that where the parties

had stipulated that a confession was dispositive we were empowered to review the

appeal on the merits.

       For its part, the State argues that the state attorney below erred in stipulating

that the motion to dismiss was dispositive, but simultaneously notes that “[w]hen the

parties stipulate in the trial court that an issue is determinative in this sense, the state

is foreclosed from arguing otherwise on appeal.” See Griffin v. State, 753 So. 2d

676, 677 (Fla. 1st DCA 2000) (citing Phuagnong). It asks that we stand by our

dismissal without prejudice or, alternatively, if we proceed to the merits to affirm.

       It is clear that two sets of precedent (Zeigler and Morgan) have coexisted for

decades in this Court’s jurisprudence as to the scope of power an appellate panel has

in situations involving motions to dismiss that are claimed to be dispositive or

stipulated as such. See Beermunder v. State, 191 So. 3d 1000, 1001 (Fla. 1st DCA

2016) (“Two lines of inconsistent cases have been cohabitating in our Court’s

jurisprudence since the mid–1980s, making the answer murky” as to what a panel is

to do) (Makar, J., concurring in result). One says we should not second-guess the

stipulation and, instead, proceed to the merits (Zeigler); the second says we may

disagree with a stipulation and dismiss the appeal, but allow for withdrawal of the

plea deal on remand (Morgan) (noting that it “need not decide whether this court is

                                             3
bound to consider an appeal on the merits where the state has stipulated to

dispositiveness . . . in spite of a record which clearly shows that the state would be

able to proceed to trial regardless of the admissibility of the disputed

evidence.” Morgan, 486 So. 2d at 1358–59).

      In deciding this case, we find instructive that our supreme court affirmed this

Court’s decision in Jackson v. State, 382 So. 2d 749 (Fla. 1st DCA 1980), which

used an approach—subsequently adopted in Zeigler and its progeny—that focuses

on whether the parties’ stipulation as to dispositiveness brings an end to the case,

regardless of whether the motion might later be deemed legally non-dispositive.

Most district courts follow this approach, one that is consistent with Florida Supreme

Court precedents. See Beermunder, 191 So. 3d at 1003 (“the approach most district

courts follow is consistent with Zeigler; it is also consistent with the Florida

Supreme Court’s decision in Brown v. State, 376 So. 2d 382 (Fla.1979), and this

Court’s decision in Jackson.”) (Makar, J., concurring in result). We note that Morgan

explicitly avoided addressing whether a panel must consider the merits of an appeal

where a stipulation exists. Morgan, 486 So. 2d at 1358-59. Thus, rather than dismiss

this appeal, we address the merits of the confession issue that Appellant and the State

deemed dispositive in this case. In doing so, we find no basis for error and affirm.

Because of the recurring nature and uncertainty as to cases in which the State and a




                                          4
defendant have stipulated to dispositiveness as the basis for an appeal, we certify the

following question as being one of great public importance:

      WHETHER AN APPELLATE COURT MUST CONSIDER THE
      MERITS OF A MOTION WHERE A STIPULATION EXISTS THAT
      THE MOTION IS DISPOSITIVE OR MAY IT MAKE ITS OWN
      INDEPENDENT DETERMINATION OF WHETHER THE MOTION
      IS DISPOSITIVE AND DECLINE REVIEW IF IT DISAGREES
      WITH THE STIPULATION?

BILBREY and M.K. THOMAS, JJ., CONCUR.




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