RAYMOND ALLEN HOWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1979-12-21
No. NN-465
LARRY G. SMITH, SHAW and WENT-WORTH, JJ., concur.
379 So. 2d 1292 Florida District Court of Appeal, First District (1979)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Raymond Howell appealed the denial of his motion to vacate a 1975 conviction and 30-year sentence for sexual battery based on a plea of nolo contendere. The First District Court of Appeal affirmed the denial, holding that the trial court's 1975 plea procedures satisfied the standards applicable at that time and that subsequent amendments to criminal procedure rules governing plea advisements were not retroactively applicable to convictions obtained before the amendments' effective date.


Holding

The court affirmed the denial of the motion to vacate, holding that the 1975 plea procedures satisfied the standards applicable at that time and that procedural rule amendments effective after the conviction are not retroactively applied in collateral proceedings. The court also held that the sentence imposed was not a mandatory minimum sentence but rather a discretionary sentence with a floor of 30 years, and therefore Norris v. State (involving mandatory minimum sentences) did not apply.


Headnotes

[1] A defendant's nolo contendere plea entered before July 1, 1977, is governed by the plea colloquy rules in effect at the time of the plea, not by subsequent amendments to…

[2] A trial court's determination that a defendant understands the significance and voluntariness of a nolo contendere plea is sufficient if it complies with the rules in eff…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“the applicable rule required the court to determine "that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness." (e. s.) Fla.R. Crim.P. 3.170(j)”

Establishes the standard applicable in 1975 when defendant's plea was taken

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Howell pleaded nolo contendere to sexual battery on November 17, 1975, after withdrawing a previous plea of not guilty. The trial court conducted a he…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

This appeal is from an order of the Circuit Court for Alachua County denying, after an evidentiary hearing, a motion filed March 7, 1979, to vacate a judgment and 30-year sentence entered in 1975 based on a plea of nolo contendere to a charge of sexual battery under § 794.011, F.S.

The order finds:

Defendant appeared before the Court on November 17,1975, and withdrew his previously entered plea of not guilty in case 75-528-CF and plead nolo contendere to sexual battery as charged in Count 2 of the information. The Court at that time received written forms signed by the Defendant and counsel, all of which were filed in the case and are a part of the record which substantially set forth the voluntariness of the plea. Before accepting the plea, the Court inquired and determined from the state and defense counsel that there was a sufficient factual basis to support the plea. In addition, the Court advised the Defendant that if the Court should accept the plea there remained nothing further to do except to impose sentence and advised him that the sentence could be a maximum term of life imprisonment. The Court specifically asked the Defendant if he understood the above, and the Defendant replied, “Yes, sir.” Thereafter the Court conditionally accepted the plea and requested a presen-tence investigation. . . . Before sentencing, the Defendant was . informed that a life felony was involved, the penalty for which could result in imprisonment for life or for a term of not less than 30 years should the Court sentence him.

Appellant concedes that the procedure followed by the trial court may have been legally adequate at the time of the 1975 hearing, when the applicable rule required the court to determine “that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness.” (e. s.) Fla.R. Crim.P. 3.170(j).

However, a subsequent change in the rule now requires a specific determination that the defendant understands “the mandatory minimum penalty provided by law.” (e. s.) Fla.R.Crim.P. 3.172(c)(i).

This revision is contained in amendments which by their express provision “shall govern all proceedings within their scope after . . . July 1,1977” (e. s.), and has been applied upon collateral attack involving convictions obtained after that date. Wilson v. State, 378 So. 2d 1258 (Fla. 1st DCA 1979).

In the present case appellant was sentenced more than two years before the 1977 amendments. While certain changes effective during the pendency of a direct appeal have been given retroactive application in limited circumstances (Hunt v. State, 318 So. 2d 523 (Fla. 1st DCA 1975), and Collins v. Wainwright, 311 So. 2d 787 (Fla. 4th DCA 1975)), such application has been denied when the issue is raised by collateral proceeding. Heilmann v. State, 310 So. 2d 376 (Fla. 2d DCA 1975); Gay v. State, 330 So. 2d 162 (Fla. 1st DCA 1976).

We conclude that the order appealed here accurately holds that the applicable standards were met at the 1975 hearing in this case, and we find no merit in appellant’s contention that later amendment requires reversal.

In addition the order appealed properly notes a distinction between the statutory provision for a minimum term of sentence which was involved in the present case, and the specific reference in the cited rule to a penalty which is both minimum and mandatory:

Both present counsel and former counsel cite Norris v. State, 343 So. 2d 964 (1st DCA 1977) which the Court finds does not apply in this case. That case involved a mandatory minimum sentence which required the defendant to serve three calendar years before being eligible for parole or statutory gain time. This case involves no mandatory minimum term. The penalty for the crime to which this Defendant plead guilty is a sentence for a term of life or not less than 30 years and is not a mandatory minimum sentence. The probability of probation existed in this case. Again defense counsel were in error when they suggested that Defendant could not receive probation. The offense to which the Defendant plead in this case is not one which would have prohibited the Court from withholding adjudication and placing the Defendant on probation since it did not involve the use of •a firearm.

The order is accordingly affirmed.

LARRY G. SMITH, SHAW and WENT-WORTH, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw