
    William Peter WRIGHT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. JJ-389.
    District Court of Appeal of Florida, First District.
    May 4, 1979.
    On Rehearing Oct. 25, 1979.
    Samuel S. Jacobson of Datz, Jacobson & Lembcke, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen.; Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

Defendant was indicted on November 20, 1975, for murder in the first degree in the death of his wife, Laura Sykes Wright. He was tried and convicted of murder in the first degree and sentenced to life imprisonment. On appeal from the judgment of conviction and sentence, this Court reversed and remanded for a new trial on the grounds that improper expert testimony was allowed into evidence and, being the only evidence of premeditation introduced by the State, constituted fundamental error. The opinion also holds that the evidence did not establish guilt of premeditated murder and that defendant’s version of the events, if true, would not establish “criminal intent” or show beyond a reasonable doubt that there was a “criminal killing.”

Thereafter the cause was remanded and on November 23, 1977, the State filed an information against defendant charging second degree murder in violation of Florida Statute section 782.04 “by doing an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the. death of any particular individual . . .” The State announced it did not propose to submit any new evidence on retrial.

On March 30, 1978, defendant moved to dismiss the information charging second degree murder pursuant to Rule 3.190(c)(4) Fla.R.Crim.P. Defendant’s “C-4” motion was not sworn to, or sufficient in its allegations of specific facts as required by Rule 3.190(c)(4). The motion was nonetheless considered by the trial court on its merits, and defects in the motion are not an issue on this appeal.

Thereafter, on April 3, 1978, the State filed an amended information for manslaughter charging that the defendant did “by his act, procurement or culpable negligence, inflict upon Laura Sykes Wright, wounds and injuries which resulted in the death of said Laura Sykes Wright, a human being, by using a bulldozer to bury her in the earth, contrary to the provisions of section 782.07, Florida Statutes.” No motion to dismiss was filed as to the amended information.

On the same day as the filing of the amended information, proceedings were had before the Court, and the following was recorded:

“[Mr. Jacobson] At this time the defendant enters a plea of nolo contendere to the amended charge of manslaughter with the understanding that the Court can in considering whether there is a legal basis for the plea, consider the transcript of record herein.
THE COURT: Before you enter the plea — excuse me. Mr. Jacobson, you had previously filed a C — 4 Motion to Dismiss. I met with you and Mr. Shore on Friday. I advised you at that time that I denied the C — 4 Motion to Dismiss but — there was sufficient evidence, after reading the transcript of the prior trial, which you gentlemen agreed that I could read and make a determination on the C-4 — in my opinion there was sufficient to justify the charge against the defendant. And I denied the C-4 motion.
I will do an order denying the C — 4 motion. And I will follow that with a written order and more detailed order later. Now the C-4 Motion to Dismiss having been denied, I understand you were entering a plea of nolo contendere to the amended information, which was filed today, to the charge of manslaughter. Is that correct, Mr. Jacobson?
MR. JACOBSON: That’s correct.
THE COURT: Go ahead with whatever you were saying.
MR. JACOBSON: We stipulate that the Court may in considering whether there is legal basis for acceptance of the plea, consider the transcript that is in the record without having the State to produce any further showing to justify acceptance of the plea.
And we further reserve the right to appeal from any finding as to the sufficiency of the evidence to justify the plea and to appeal from the Court’s order denying the C-4 motion that the Court just announced.”

Thereafter, another proceeding was held before the Court on April 18, 1978 for the purpose of imposing sentence on the defendant. At that time a counsel for the defendant again stated:

“[Mr. Jacobson] We have no witnesses, and nothing to say in mitigation. The only cause to show would be the reiteration of our reservation of our right to appeal from the denial of the C-4 motion, and to attack the sufficiency of the record to constitute a basis for a plea, or acceptance of the nolo.”

The court adjudged defendant guilty and sentenced him to 15 years imprisonment.

On appeal to this Court, defendant contends: (1) That the trial court erred in denying his motion to dismiss; (2) That the evidence was insufficient to support defendant’s plea of nolo contendere to manslaughter and (3) That the manslaughter charge constituted double jeopardy.

As to the first point, there is no basis for defendant’s claim of error since he did not move to dismiss the information charging manslaughter, the charge of which he was adjudged guilty on his plea.

Defendant’s second point, the sufficiency of the evidence, was not an error preserved on entry of the plea. Defendant’s purported reservation was as to the court’s determination of a factual basis for the plea under Rule 3.172(a). The function of the court under Rule 3.172(a) is not to pass on the sufficiency of the evidence to support a conviction, but rather to determine that a “factual basis” exists before accepting the plea. This means that the court makes inquiry as to the facts sufficient to satisfy itself that a prima facie basis exists for the charge against the defendant. The court below, in determining that the factual basis existed for defendant’s plea, made no ruling on the sufficiency of the evidence and no error in its determination was preserved on entry of defendant’s plea.

The law recognizes that an accused has the right to proffer his plea of guilty or nolo contendere to the charge against him, but not the right to require the court accept that plea. The acceptance of the plea is a matter within the exercise of sound judicial discretion. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Under Rule 3.172(a), Fla.R.Crim.P., and its counterpart in the federal system, Rule 11, Fed.R.Crim.P., the court makes inquiry to determine the voluntariness of the plea and the factual basis for it. In U. S. v. Bethany, 489 F.2d 91, 92 (5th Cir.1974) the court held:

“Rule 11 of the Federal Rules of Criminal Procedure prohibits the court from entering a judgment upon a plea of guilty ‘unless it is satisfied there is a factual basis for the plea.’ Contrary to appellant’s argument, this requirement does not demand a ‘written, sworn, and filed stipulation of evidence,’ but only that the court make an inquiry ‘factually precise enough and sufficiently specific to develop that [defendant’s] conduct on the occasions involved was within the ambit of that defined as criminal.’ ”

The court may accept a plea of guilty or nolo contendere when voluntarily and understandably offered, even though the defendant maintains he is innocent of the particular charge against him. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the defendant, indicted for first degree murder entered a plea of guilty to second degree murder on advice of counsel but stated that he had not committed the murder, and was pleading guilty because he faced the threat of a death penalty if he did not do so. The United States Supreme Court held the plea valid, stating (400 U.S. at 33-34, 37, 91 S.Ct. at 165, 167):

“As one state court observed nearly a century ago, ‘[r]easons other than the fact that he is guilty may induce a defendant to so plead, . . . [and] [h]e must be permitted to judge for himself in this respect.’ State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879) (dictum). Accord, e. g., Griffin v. United States, 132 U.S.App.D.C. 108, 405 F.2d 1378 (1968); Bruce v. United States, 126 U.S.App.D.C. 336, 342-343, 379 F.2d 113, 119-120 (1967)
An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt . .

In the instant case, defendant’s plea was proffered after the trial court announced the court’s decision to deny the motion to dismiss the information charging second degree murder. Defendant did not move to dismiss the manslaughter charge but determined to plead nolo contendere to that charge and agreed that the trial court, in determining the factual basis for acceptance of his plea, could review the transcript and depositions on record from the prior trial. As quoted in full above, defendant further “stipulated that the court . consider the transcript that is in the record without having the State to produce any further showing to justify acceptance of the plea.” The record on file with the court (which included defendant’s sworn testimony) established that defendant’s wife died as a result of being buried under the earth and that defendant operated the bulldozer which covered her with 2.8 cubic yards of dirt, causing her death by suffocation. It is uncontroverted here that the plea was voluntarily made by defendant, who was competent, informed of his rights, and represented by counsel. Defendant was entitled to offer his plea to the charge and the court properly accepted it.

The defendant’s double jeopardy argument is without merit. Peel v. State, 150 So.2d 281 (Fla. 2nd DCA 1963); cert. denied 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965).

AFFIRMED.

MILLS, Acting C. J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

Dissenting.

Without addressing the merits of appellant’s motion to dismiss, the majority concludes that Wright failed to preserve the denial of his motion because he did not move to dismiss the amended information. I feel that this is an overly technical and strained interpretation of the facts. Following remand, and after the state filed its information for second degree murder, Wright moved, pursuant to Fla.R.Crim.P. 3.190(c)(4), to dismiss the information on the ground that there did not exist any material disputed facts and that the undisputed facts did not establish a prima facie case of guilt. The motion referred also to the record in the prior case and represented there were no additional facts. It concluded with the statement that the evidence “as viewed most favorably to the prosecution did not show beyond a reasonable doubt that there was a criminal killing.”

The purpose of a Rule 3.190(c)(4) motion is “to permit a pretrial determination of the law of the case where the facts are not in dispute, in a sense somewhat similar to summary judgment proceedings in civil cases . . ..” State v. Giesy, 243 So.2d 635 (Fla. 4th DCA 1971). If the state wishes to avoid the effect of such motion, it is required to traverse it by denying any of the material facts alleged, Rule 3.190(d), or by presenting additional facts. Ellis v. State, 346 So.2d 1044, 1046 (Fla. 1st DCA 1977). Moreover, when the burden of proof shifts to the state, the state’s failure to file a traverse will mandate the granting of the motion. Camp v. State, 293 So.2d 114 (Fla. 4th DCA 1974); Ellis v. State, supra. Here the state neither traversed Wright’s motion nor did it offer additional evidence. It in fact stipulated it had no other evidence than that introduced at the previous trial. It was therefore bound by the evidence received at the prior trial against Wright.

It cannot logically be contended that appellant has not preserved his right to appeal the denial of the motion to dismiss the amended information because he failed to refile it on the same day the amended information was filed. When viewed within the context of all the trial proceedings, it would be less than fair to say the court, when entering its order of denial, did not consider that Wright’s motion to dismiss applied also to the amended information. The motion was couched in language such that it clearly would have applied to any unlawful homicide, including manslaughter. The record of the proceedings held on Tuesday, April 3, 1978, the same day the amended information was filed, shows that at the outset of the arraignment the court advised defense counsel it had on the preceding Friday, March 31, denied the motion to dismiss but that it would enter a written order of denial later. Following the acceptance of the plea of nolo contendere, defense counsel stated that he was reserving both the right to appeal from any finding by the court that the evidence was sufficient to support the plea and “from the court’s order denying the C-4 motion that the court just announced.” I fail to see that the point has not been raised and feel that it should be appropriately addressed on its merits.

As to the merits, Wright argues that the lower court’s denial of his motion to dismiss and its imposition of guilt was violative of the law of the case previously decided by this court. I agree. In the prior opinion, we stated:

Appellant was the only eyewitness to the death of his wife. His version of the events, if true, would not establish criminal intent, and the other circumstances do not show beyond a reasonable doubt that there was a criminal killing. Under these circumstances, the law is that the appellant’s story must be accepted. Id. at 31. (e. s.)

The opinion also observed that in Driggers v. State, 164 So.2d 200 (Fla.1964), a conviction was reversed after the Supreme Court concluded that all the evidence was as consistent with the defendant’s version of the tragedy and with his innocence as it was with his guilt, and the Wright opinion continued, “so it is here.” Id. at 31. When the state elected not to present any additional evidence against Wright, its case was then reduced to evidence which had already been reviewed by us and had been found insufficient to support a conviction for any unlawful homicide. The state was thereupon bound by the principle of the law of the case and it was barred from again prosecuting him on the same evidence.

By law of the case it is meant that the question of law decided on appeal to a court of ultimate resort must govern the case in the same court and the trial court through all subsequent stages of the proceeding. 3 Fla.Jur.2d, Appellate Review, § 414. The treatise continues:

[WJhere the evidence on a second trial is substantially the same as that received on the first trial, the appellate court, on the second appeal, is bound by its decision on the first appeal that the evidence was sufficiently substantial to prove an issue and will not disturb the ruling of the trial judge on the sufficiency of the evidence to support the verdict rendered on the second trial. Similarly, where a case has been reversed in order to allow the plaintiff an opportunity to produce sufficient legal evidence to establish his claim but the appellate court has also held that the evidence given at the first trial was insufficient as a matter of law, where such evidence, on remand and retrial, is substantially the same as in the prior adjudication, the trial judge is correct in entering summary judgment for the defendant. 3 Fla.Jur.2d, Appellate Review, § 426 at 582-583.

The doctrine of the law of the case does not extend to mere dicta or to matters not raised or considered in the prior appeal. 3 Fla.Jur.2d, Appellate Review, § 421. In other words, the rule of the law of the case can be applied only to questions actually or impliedly presented to and decided by the reviewing court. King v. Citizens and Southern Nat. Bank, 119 So.2d 67 (Fla. 3d DCA 1960). Obiter dictum is language quoted in an opinion which is not essential to a decision of the case. Pell v. State, 97 Fla. 650, 122 So. 110 (1929); State v. Florida State Improve. Com., 60 So.2d 747 (Fla.1952). However, a statement in a decision will not be regarded as mere dicta if the statement was necessary to the disposition of the case. Therrell v. Reilly, 111 Fla. 805, 151 So. 305 (1932).

In the prior case the court was presented two questions to resolve: (1) The insufficiency of the evidence, and (2) the non-relevancy of the expert’s testimony pertaining to the decedent’s cause of death. While our opinion focused primarily upon the latter question, it nevertheless addressed the former. Two or more questions properly raised in a case under the pleadings or proof may be determined, even though either would dispose of the case on its merits, and neither holding is considered dictum so long as it is properly raised, considered and determined. Parsons v. Federal Realty Corp., 105 Fla. 105, 143 So. 912 (1931). Thus a ruling in a ease fully considered and decided by an appellate court is not dictum merely because it was not necessary, on account of a conclusion reached upon one question, to consider another question, the decision of which would have controlled the judgment. Id.

As previously noted, the language used in the earlier opinion was not restricted only to the offense of first degree murder. It stated also that the circumstances did not show beyond a reasonable doubt that there was a criminal killing. Certainly a criminal killing may include manslaughter, which is neither justifiable or excusable homicide. This court had the authority, if it determined the evidence did not support first degree murder but did support a finding of guilt for a lesser statutory degree of the offense or a lesser included offense, to reverse the judgment and direct the trial court to enter judgment for a lesser degree of the offense or a lesser included offense. Section 924.34, Fla.Stat. (1977). It must have concluded that the evidence then before it was not sufficient to find defendant guilty of either the stated offense or of any lesser included offense. By remanding for new trial, it implicitly allowed the state to present additional evidence, if it chose, to support a charge of unlawful homicide. The state, however, elected not to offer new evidence. The state is now bound by the law of the case established in the first appeal, whether correct on general principles or not, so long as the facts on which the decision was predicated continue to be the facts of this case. 3 Fla.Jur.2d, Appellate Review, § 414, p. 566.

I differ also with the majority that Wright’s second point, urging there was no factual basis for the acceptance of the nolo plea, was not preserved. Fla.R.Crim.P. 3.172(a) requires that the trial judge shall satisfy himself that there is factual basis for the plea. Moreover, Rule 3.170(j) provides that no plea of guilty and nolo conten-dere shall be accepted by the court without first determining that there is a factual basis for the plea. In interpreting the latter rule, the Florida Supreme Court stated that it is the trial court’s responsibility “to insure that the facts of the case fit the offense with which the defendant is charged.” Williams v. State, 316 So.2d 267, 271 (Fla.1975). Relief is permitted to a defendant only where there is a showing of prejudice or manifest injustice. Id.

In my opinion, the facts cry out for relief here. Defense counsel advised the court that Wright was entering his plea of nolo contendere to manslaughter with the express understanding that the court would determine whether there was a legal basis for the plea by considering the transcript of the record in the prior case. The arraignment colloquy concluded with defense counsel’s statement that he was reserving “the right to appeal from any finding as to the sufficiency of the evidence to justify the plea. . . . ” There clearly could not be a factual basis in support of the plea of nolo contendere to manslaughter, given our prior opinion in Wright v. State, supra, and the failure of the state to present any additional evidence against Wright after remand.

I would reverse the lower court’s judgment of conviction and its order denying the motion to dismiss, with directions that Wright be discharged from further custody.

ON REHEARING

BOOTH, Judge.

On petition for rehearing, appellant moved this court to allow supplementation of the record to substantiate appellant’s contention that the sufficiency of the evidence to support the manslaughter charge was in fact ruled on by the trial court and preserved by appellant’s nolo contendere plea as an issue on appeal. Due to the unique circumstances and posture of this case before the court, jurisdiction of the cause was temporarily relinquished to the trial court for the purpose of holding an evidentiary hearing and supplementing the record to the extent necessary to establish: (1) Whether the sufficiency of the evidence to support the charge of manslaughter was ruled on in the prior proceeding before the trial court; or, (2) In the event that the issue was not ruled on below, whether circumstances of the plea bargaining negotiations between counsel require that appellant now be allowed to file a motion under Rule 3.190(c)(4), Rules of Criminal Procedure, [C-4 Motion] directed to the information charging manslaughter, to be ruled on by the trial court.

On remand, the parties stipulated to the facts as alleged by appellant, the trial court entered its order pursuant thereto and entertained and denied a C-4 motion to dismiss the information charging manslaughter.

The record now having been supplemented, the issue is squarely presented as to whether the trial court erred in denying the C-4 motions in view of this court’s prior decision. That prior decision holds that without the improperly admitted testimony of the medical examiner, the evidence was insufficient to sustain defendant’s conviction of premeditated murder. The opinion further states that defendant’s version of the events, if true, would not establish criminal intent and “the other circumstances do not show beyond a reasonable doubt that there was a criminal killing.” (348 So.2d at 31)

The defendant in that prior appeal had requested this court either enter a judgment of acquittal or remand for a new trial. The latter remedy, a remand for new trial, was afforded. There was no request that this court act under Florida Statute § 924.-39, to reduce the charge to a lesser offense, and the court did not sua sponte undertake to consider a possible reduction to a lesser included offense supported by the evidence. We agree with defendant, however, that the opinion is misleading, particularly in its use of the term “criminal killing,” a term without recognized definition in the law of this State. The intent of the opinion was to hold that defendant could not, on the evidence properly admitted, be convicted of premeditated murder, but not preclude defendant’s conviction of some lesser included offense. To the extent that the opinion is subject to interpretation urged by the defendant here, precluding his conviction of any lesser degree of unlawful homicide, it is misleading and may have prejudiced defendant in his decision to enter into plea bargaining negotiations and to plead nolo contendere to the information charging manslaughter.

Accordingly, we are of the view that the interests of justice in this case require that defendant be allowed to withdraw his nolo contendere plea and that the parties be restored to the status existing at the time the information was filed charging murder in the second degree and prior to plea bargaining. The trial court’s denial of motions under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, addressed to the original and amended informations, are affirmed and the cause remanded for further proceedings consistent herewith.

MILLS, C. J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

The majority on rehearing now concludes that appellant properly preserved his point as to the sufficiency of the evidence in support of the manslaughter charge, yet refuses to hold the state is bound by the law of the case because the words “criminal killing” are misleading. I think even a novice law school student could readily understand the term criminal killing is synonymous with unlawful homicide and would include any of the degrees of murder or manslaughter as defined by statute. One is either guilty of one of the degrees of murder or manslaughter, or one has committed no unlawful homicide. Section 782.04, defining the various degrees of murder, begins its definitions of first, second and third degree murder with the words “the unlawful killing of a human being . . ..” Unlawful is synonymous with “criminal” or “felonious” within the context of homicide. Moreover manslaughter is defined in part as the killing of a human being “without lawful justification ... in cases in which such killing shall not be excusable homicide or murder, . . ..”

To summarize, the term criminal killing is easily understood both from Florida statutes and case law. The original Wright opinion clearly and unambiguously stated that on the record before it “the . circumstances do not show beyond a reasonable doubt that there was a criminal killing.” 348 So.2d at 31. I consider that we, as well as the state, are now bound by that opinion, and as a result, we have no choice than to reverse with directions that Wright be discharged from custody. 
      
      . Wright v. State, 348 So.2d 26 (Fla. 1st DCA1977); cert. denied 353 So.2d 679 (Fla.1977).
     
      
      . “[T]he court may at any time entertain a motion to dismiss on any of the following grounds:
      
        
      
      (4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which such motion is based should be specifically alleged and the motion sworn to.”
      
      
      . Fla.R.App.P. 9.140(b); McNamara v. State, 357 So.2d 410, 411 (Fla.1978):
      “The plea of nolo contendere waives all defects in a criminal proceeding with the exception of jurisdictional ones, and in order to reserve the right to appeal a question of law, appellant must expressly reserve the same by conditioning his plea on the reservation of the specific, narrowly-drawn question of law. . . ”
     
      
      . Rule 3.172(a), Fla.R.Crim.P.:
      “Before accepting a plea of guilty or nolo con-tendere the trial judge shall satisfy himself that the plea is voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function.”
     
      
      . Monroe v. State, 318 So.2d 571, 573 (Fla. 4th DCA 1975):
      "The inquiry which the court should conduct in order to determine that there is a factual basis for the plea of guilty need not be a ‘mini-trial’, and the plea may be accepted in spite of the defendant’s protestation of innocence or his denial of an essential element of the crime, if there is otherwise in the record matters from which the court may determine that there exists a factual basis for the plea. Some of the means by which the court may satisfy itself in this respect are through statements and admissions made by the defendant, or by his counsel, or by the prosecutor, or by factual evidence heard from witnesses before the court at the time of the plea hearing, or by factual evidence heard from witnesses before the court at some prior stage of the proceedings (such as preliminary hearings or motions to suppress), or by depositions taken and filed in the cause .
      It is not a matter of weighing the evidence but only to fulfill the purpose of the rule which is to make certain that a defendant does not plead guilty to an offense of which he could not possibly be guilty. .
     
      
      .See, Williams v. State, 316 So.2d 267, 271 (Fla.1975), under an earlier version of the rule holding:
      “The sole purpose of the provision [factual basis of plea] is to determine the accuracy of the plea, thereby avoiding a mistake.”
     
      
      . Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977).
     
      
      . McCormick v. State, 153 Fla. 838, 16 So.2d 49 (1944).
     