KENNETH HARVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Harvey appeals the revocation of his probation and resulting six-year sentence following a nolo contendere plea to drug delivery. The court affirmed the probation revocation based on excessive intoxication but reversed the sentencing portion because Harvey was not informed at the time of his plea that he faced potential exposure beyond five years under the Youthful Offender Act.
The court affirmed the probation revocation based on the excessive intoxication violation but reversed the six-year sentence. Because Harvey was informed only of a five-year maximum exposure at plea entry, he must either receive a sentence not exceeding five years or be allowed to withdraw his plea, depending on what the trial court finds regarding his knowledge of greater penalties under the Youthful Offender Act.
[1] A trial court may revoke probation based on a violation of a condition prohibiting the excessive use of intoxicants, even if the specific charge in the affidavit of viola…
[2] A probation revocation based on resisting arrest without violence will be reversed if the State fails to prove the legality of the arrest.
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“If appellant was unaware of the greater penalty to which he was actually exposed at the time of the entry of his plea, his sentence must either be reduced to not more than five years or he must be allowed to withdraw his plea.”
Establishes the core holding that a defendant's lack of knowledge of actual maximum penalties at plea entry requires either sentence reduction or plea withdrawal.
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Join FLexlaw to unlock all legal intelligenceOn February 5, 1980, Harvey pled nolo contendere to delivery of more than 20 grams of cannabis. The trial judge informed him his maximum exposure was …
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McCORD, Judge.
Appellant appeals the trial court’s revocation of his probation and the subsequent sentence. We affirm in part, reverse in part, and remand.
On February 5, 1980, appellant pled nolo contendere to a charge of delivery of more than 20 grams of cannabis. In determining appellant’s understanding of his plea, the trial judge informed appellant that he would be subject to a five-year term in prison, which appellant indicated he understood. After entry of the plea, the trial court withheld adjudication and placed appellant on probation for a period of two years.
Shortly thereafter, appellant was charged with violation of Condition 6 of his probation, which prohibited him from using intoxicants to excess. The affidavit of violation also charged appellant with resisting arrest. After a hearing, the trial court entered an order of revocation of probation finding both grounds had been proven. The court thereupon sentenced appellant to six years in prison, no more than four of which shall be served by imprisonment and a period of not more than two years shall be served in a community program, pursuant to the Youthful Offender Act, Chapter 958, Florida Statutes.
Appellant first contends that the trial court erred in revoking his probation for disorderly intoxication when the proof did not show the elements of disorderly intoxi cation, and disorderly intoxication was not the offense charged in the affidavit of probation violation. Contrary to appellant’s assertion, however, the trial court did not revoke appellant’s probation for disorderly intoxication. The proof supports a finding that appellant did use intoxicants to excess. Therefore, the trial court was justified in revoking appellant’s probation on that ground.
Appellant next contends that the trial court erred in revoking his probation for resisting arrest without violence because the State did not prove the legality of his arrest. We agree on this point, but inasmuch as the revocation was proper on the other ground, such error does not alter the result.
As his final point, appellant contends that the trial court erred in sentencing him to a six-year term under the Youthful Offender Act. The record shows that, at the time of entry of his nolo contendere plea, appellant was informed that his maximum exposure was five years in prison. If appellant was unaware of the greater penalty to which he was actually exposed at the time of the entry of his plea, his sentence must either be reduced to not more than five years or he must be allowed to withdraw his plea. Compare McCullough v. United States, D.C., 231 F.Supp. 741 (1964). Upon remand the trial court may hold a hearing to determine whether or not at the time of appellant’s plea he had knowledge of the greater penalty to which he was exposed under the Youthful Offender Act.
Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.
BOOTH and SHIVERS, JJ., concur.
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Jefferson v. State, 515 So. 2d 407 (Fla. 1st DCA 1987)…e case must be remanded. See State v. Green, 421 So. 2d 508 (Fla.1982) (failure to advise defendant of direct consequences of plea prohibits him from rendering a truly voluntary and knowledgable waiver of his constitutional rights); Harvey v. State, 399 So. 2d 1134 (Fla. 1st DCA), rev. denied, 411 So. 2d 382 (Fla. 1981) (if appellant was unaware of greater penalty to which he was exposed at the time of the entry of the plea, his sentence must be either reduced, or he must be allowed to withdraw his plea). On r…
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Echeverria v. State, 949 So. 2d 331 (Fla. 1st DCA 2007)…ecause the appellant was not properly apprised of the significance and consequences of his guilty plea, he should be remanded for re-sentencing. See Jefferson, 515 So. 2d at 408 (citing State v. Green, 421 So. 2d 508 (Fla.1982), and Harvey v. State, 399 So. 2d 1134 (Fla. 1st DCA 1981)). This Court further ordered that, on remand, “the trial court shall either sentence the appellant to the agreed upon sentence” ... “or allow the appellant the option of withdrawing his plea.” Jefferson, 515 So. 2d at 408. In ac…
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Jema Cline Terrell v. State, 664 So. 2d 74 (Fla. 3d DCA 1995)…PER CURIAM. Affirmed. Harvey v. State, 399 So. 2d 1134,1135 (Fla. 1st DCA), review denied, 411 So. 2d 382 (Fla.1981).…