IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT. : Case No. APPEAL FROM THE CIRCUIT COURT IN AND FOR POLK COUNTY STATE OF FLORIDA

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1 IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KARL OWENS, Appellant, vs. STATE OF FLORIDA, Appellee. Case No APPEAL FROM THE CIRCUIT COURT IN AND FOR POLK COUNTY STATE OF FLORIDA INITIAL (ANDERS) BRIEF OF APPELLANT JAMES MARION MOORMAN PUBLIC DEFENDER TENTH JUDICIAL CIRCUIT ANDREA NORGARD Assistant Public Defender FLORIDA BAR NUMBER O661O66 Public Defender's Office Polk County Courthouse P. O. Box Drawer PD Bartow, FL 33831

2 (941) ATTORNEYS FOR APPELLANT

3 TOPICAL INDEX TO BRIEF PAGE NO. STATEMENT OF THE CASE AND FACTS 1 SUMMARY OF THE ARGUMENT 2 ARGUMENT 3 ISSUE WHETHER THE TRIAL COURT ERRED IN IMPOSING SENTENCE. 3 CONCLUSION 5 CERTIFICATE OF SERVICE 5 i

4 TABLE OF CITATIONS CASES PAGE NO. Anders v. California, 386 U.S. 738 (1967) 2 Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979) 3, 4 In re Appellate Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991) 2 McGinty v. State, 463 So.2d 495 (Fla. 2d DCA 1985) 3, 4 Penson v. Ohio, 488 U.S. 75 (1988) 2, 5 See also, Bridges v. Dugger, 518 So.2d 298,300N.3 (Fla. 2d DCA 1987) 4 OTHER AUTHORITIES Fla. R. Crim. P ii

5 STATEMENT OF THE CASE AND FACTS On May 18, 1995, the State Attorney for the Tenth Judicial Circuit filed an Information charging Appellant, Karl Owen, with two counts of Possession of a Firearm by a Convicted Felon. (Vol.I,R1-3) On September 22, 1995, Appellant entered a plea pursuant to negotiations with the State. (Vol.I,R-11) Appellant pled to one count of the Information, one count was dropped, for an anticipated Guideline point total of 40. (Vol.I,R36-38) A New agreement was entered into on February 29, 1996 which called for a cap of 34 months in state prison. (Vol.I,R15-17) Appellant was sentenced at that time to 16 months in state prison. (Vol.I,R21-32) A notice of Appeal was filed on March 25, 1996.(Vol.I,R41) 1

6 SUMMARY OF THE ARGUMENT Despite a thorough reading of the record on appeal and a review of the law on arguable points, the undersigned appellate counsel can find no meritorious argument to support the contention that the trial court committed significant reversible error in this case. Consequently, undersigned counsel files this brief pursuant to Anders v. California, 386 U.S. 738 (1967), and In re Appellate Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991). Appellate counsel has sent the Appellant a copy of this brief and the record on appeal and asks that the Appellant be allowed to file another brief, either pro se or through other counsel. If this Court finds a possibility of reversible error, it should under Penson v. Ohio, 488 U.S. 75 (1988), appoint other counsel for the Appellant or allow undersigned counsel to file another brief for the Appellant. Counsel directs this Court's attention to the following possible issues 1. Whether the trial court erred in imposing sentence. 2

7 ARGUMENT ISSUE WHETHER THE TRIAL COURT ERRED IN IMPOSING SENTENCE. Appellant entered a plea of guilty pursuant to negotiations in this case. Appellant pled to two of four counts in exchange for a sentence of 34 months or less in state prison. Appellant was sentenced to 16 months prison. No motion to withdraw the plea appears in the record. It thus appears that this court is without jurisdiction to consider this appeal. According to Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979), a defendant who pleads guilty or no contest without reserving the right to contest a dispositive issue may not appeal unless (1) The trial court lacked jurisdiction; (2) the state violated the plea agreement; (3)the court denied a motion to withdraw the plea; or (4) the sentence is illegal. The circuit court had jurisdiction over the Appellant because he was charged with at least one felony. Sec (2)(d), Fla. Stat.(1985). The record contains no motion to withdraw the plea. Appellant did not reserve the right to appeal a dispositive issue. In McGinty v. State, 463 So.2d 495 (Fla. 2d DCA 1985), the public defender informed this court by notion that the appeal was from a guilty plea, that the sentence was within the maximum 3

8 provided by law, and that no motion to withdraw the plea had been filed. This court ordered the Appellant, pro se, to show cause why his appeal should not be dismissed. The order explained to him that, if he believed his plea was involuntary, he could raise this issue only on collateral attack, not by a direct appeal. When he did not respond, this court dismissed the appeal. This court approved and followed this procedure because it had no jurisdiction to hear the appeal. The procedure channelled the client's complaints to the proper methods of attack, a motion to withdraw the plea or amotion to vacate pursuant to Florida Rule of Criminal Procedure See also, Bridges v. Dugger, 518 So.2d 298,300N.3 (Fla. 2d DCA 1987). Counsel believes that, for the reasons stated above, the McGinty procedure is appropriate for this appeal. Accordingly, counsel asks this court to issue an order to show cause to the appellant, pro se. Counsel asks that the order explain the four Counts criteria and explain that, at this stage, the proper method of attacking an involuntary plea is through a motion. 4

9 CONCLUSION Undersigned counsel asks this Court to allow the Appellant, either pro se or through other counsel, to submit a brief on whatever points might be appropriate. If this Court finds a possibility of reversible error, it should under Penson v. Ohio, 488 U.S. 75 (1988), appoint other counsel for the Appellant or allow undersigned counsel to file another brief for the Appellant. CERTIFICATE OF SERVICE I certify that a copy has been mailed to Robert Butterworth, Suite 700, 2002 N. Lois Ave., Tampa, FL 33607, (813) , and to the Appellant, Karl Owens, on this day of January, Respectfully submitted, JAMES MARION MOORMAN ANDREA NORGARD Public Defender Assistant Public Defender Tenth Judicial Circuit Florida Bar Number O661O66 (941) P. O. Box Drawer PD Bartow, FL AN/lbw 5