                                       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.”




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