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

DAMANTA JAMAR MURPHY,                 NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D13-5652

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 23, 2014.

An appeal from the Circuit Court for Okaloosa County.
Michael A. Flowers, Judge.

Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General and Julian E. Markham and Jay Kubica,
Assistant Attorneys General, Tallahassee, for Appellee.


CLARK, J.

      Damanta Murphy appeals his judgment and sentence, entered after the

circuit court’s denial of his motion to suppress and his subsequent plea of no

contest to numerous felony charges. During the plea hearing, defense counsel

stated that Mr. Murphy entered the plea with the reservation of his right to appeal

the denial of his motion to suppress written and oral statements to the police. The
circuit court acknowledged the reservation and the written plea agreement

contained the notation “[r]eserve the right to appeal the issue of suppression.”

However, the State never stipulated, and the court never made a determination, that

the motion to suppress was legally dispositive as contemplated under rule 3.170(l),

Florida Rules of Criminal Procedure and rule 9.140(b)(2)(A)(i), Florida Rules of

Appellate Procedure. See also § 924.051(4), Fla. Stat. No motion to withdraw the

plea, pursuant to rule 3.170(l), is contained in the record.

      Under these circumstances and upon the record before us, we are

constrained to affirm the conviction and sentence. Leonard v. State, 760 So. 2d

114 (Fla. 2000). However, the mistaken assurances of defense counsel and the

trial court that Mr. Murphy’s plea reserved his ability to appeal the denial of the

motion to suppress bring into question the “voluntary and intelligent” nature of

Appellant’s plea. See Holden v. State, 90 So. 3d 902, 904 (Fla. 1st DCA 2012)

(Benton, C.J., concurring).

      At this point in time, it is too late for Mr. Murphy to file a motion to

withdraw his plea pursuant to rule 3.170(l) and thus too late to preserve the issue

for appeal as otherwise allowed under rule 9.140(b)(2)(A)(ii). Even if we

remanded this case for a determination of whether the motion to suppress was

dispositive, as the appellate court did in Bonfiglio v. State, 57 So. 3d 990 (Fla. 2d

DCA 2011), the time limitations governing motions to withdraw could not be met.

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As noted in Williams v. State, 134 So. 3d 975, 977-78 (Fla. 1st DCA 2012): “Even

if Florida Rule of Criminal Procedure 3.170 is no longer available to appellant on

remand, Florida Rule of Criminal Procedure 3.850 contemplates collateral relief

from convictions predicated on pleas that are not voluntary and intelligent. Fla. R.

Crim. P. 3.850(a)(1) and (5).” See also Holden, 90 So. 3d at 904 (Benton, C.J.,

concurring). Appointment of counsel to assist Mr. Murphy in determining whether

pursuit of such collateral relief is in his best interest would be appropriate upon his

motion requesting such appointment.

      The judgment and sentence are affirmed.

VAN NORTWICK and SWANSON, JJ., CONCUR.




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