CARL WAYNE FREEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence deviating from the terms of an approved plea bargain cannot stand without allowing the defendant to withdraw their plea.
Appellant pled nolo contendere pursuant to a plea bargain reserving the right to appeal denial of motions. The plea bargain contemplated probation wit…
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GRIMES, Chief Judge.
Pursuant to a plea bargain, appellant pled nolo contendere to a charge of possession of a controlled substance, reserving the right to appeal the denial of his motions to suppress and dismiss. We find no error in the denial of these motions. However, appellant has a valid complaint with respect to his sentence.
The plea bargain contemplated that after consideration of appellant's presentence investigation the court could sentence him up to a maximum of five years, but if the court decided to place him on probation, it would withhold adjudication and not require him to serve more than one year in jail as a condition of probation. At sentencing two months later, the court concluded that appellant’s PSI justified placing him on probation with the condition that he spend one year in jail. In addition, the court adjudicated appellant guilty and fined him $5,000.
Appellant contends, and we agree, that the sentence cannot stand because it deviated from the terms of the plea bargain which the court had originally approved. When the court did not later honor this bargain, whether through mistake or subsequent change in its point of view concerning the appropriate sentence, appellant should have had the opportunity to withdraw his plea before sentencing. Davis v. State, 308 So. 2d 27 (Fla.1975).
Accordingly, we hereby vacate the sentence and remand the case for further proceedings. In the event the court continues to feel that a sentence other than that contemplated by the plea bargain is warranted, it should first give appellant the option to withdraw his plea. See State ex rel. Milton v. Strickland, 361 So. 2d 446 (Fla.2d DCA 1978).
HOBSON and BOARDMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)…ution if the negotiated plea is not binding. See Bucolo v. Adkins, 424 U.S. 641, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1976). If the defendant chooses not to be bound by the misconceived bargain, he is entitled to make that decision. Cf. Freeman v. State, 376 So. 2d 294 (Fla.2d DCA 1979). But, in that event, the nolle prosequi of the companion case should not stand. See Brown v. State, 367 So. 2d 616 (Fla.1979). The speedy trial period would exclude the period between the acceptance and the withdrawal of the origin…
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Logan Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982)…his nolo contendere plea. Wright v. State, 376 So. 2d 236 (Fla. 1st DCA 1979), cert. denied, 389 So. 2d 1117 (Fla.1980). Court rejection of a plea agreement leads to withdrawal of the plea. Davis v. State, 308 So. 2d 27 (Fla.1975); Freeman v. State, 376 So. 2d 294 (Fla. 2d DCA 1979); Richmond v. State, 375 So. 2d 1132 (Fla. 1st DCA 1979); Segarra v. State, 360 So. 2d 79 (Fla. 3d DCA 1978) rev’d on other grounds, 388 So. 2d 1017 (Fla.1980); State ex rel. Wilhoit v. Wells, 356 So. 2d 817 (Fla. 1st DCA), cert. d…
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Lepper v. State, 451 So. 2d 1020 (Fla. 1st DCA 1984)…cases. See, e.g., Coleman v. State, 433 So. 2d 627 (Fla. 2d DCA 1983); Dunkel v. State, 432 So. 2d 201 (Fla. 2d DCA 1983); Gumbiner v. State, 429 So. 2d 828 (Fla. 2d DCA 1983); Nichols v. State, 403 So. 2d 1089 (Fla. 1st DCA 1981); Freeman v. State, 376 So. 2d 294 (Fla. 2nd DCA 1979); Coy v. State, 404 So. 2d 135 (Fla. 4th DCA 1981). I would, accordingly, reverse the conviction and remand appellant’s case with directions that he be given an opportunity to withdraw his plea of nolo contendere, if he desires,…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Vikki Zimmerman Davis v. State, 308 So. 2d 27 (Fla. 1975)
- State of Fla. ex rel. Larry Milton v. Honorable J. Tim Strickland, 361 So. 2d 446 (Fla. 2d DCA 1978)