RICHARD GALER NICHOLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court violated plea agreement by sentencing defendant to three years in prison after agreeing to county jail time up to one year, requiring reversal and remand to either honor the agreement or allow plea withdrawal.
When a trial judge cannot uphold his portion of a plea agreement, the defendant must be allowed to withdraw the plea.
[1] When a trial judge breaches a plea agreement regarding sentencing, the defendant is entitled to either enforcement of the agreement or withdrawal of the plea.
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Trial judge's statement at plea hearing establishing the sentencing agreement with defendant
Appellant entered a nolo contendere plea to possession of more than 20 grams of cannabis after the trial judge agreed that any incarceration would be …
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PER CURIAM.
Appellant appeals from the trial court’s denial of his motion for reconsideration of sentence or to set aside judgment and allow a plea of not guilty to be entered. Appellant entered a plea of nolo contendere to possession of more than 20 grams of cannabis. At the plea hearing, the following colloquy took place between appellant and the trial judge:
THE COURT: Now I’ve discussed this matter with Mr. Antonacci and with your lawyer, and I have agreed that any period of incarceration that’s required in this case will be served at the county jail, but that’s the only thing that this court has agreed. Do you understand that?
THE COURT: Now, with the understanding that this may result in your incarceration in the Leon County jail for a period of up to one year —
THE COURT: —are you — are you sure this is what you want to do?
After receiving the presentence investigation report, however, the trial judge sentenced appellant to three years in prison. Because the trial judge could not uphold his portion of the agreement, he should have allowed appellant to withdraw his plea. Wilhoit v. Wells, 356 So. 2d 817 (Fla. 1st DCA 1978); Richmond v. State, 375 So. 2d 1132 (Fla. 1st DCA 1979). Therefore, we reverse and remand to the trial court to impose sentence in accordance with the agreement or to vacate the judgment and allow appellant to withdraw his plea.
REVERSED.
ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.
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Lepper v. State, 451 So. 2d 1020 (Fla. 1st DCA 1984)…d disposition. This rule has been repeated in numerous 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…
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Shaw v. State, 449 So. 2d 307 (Fla. 1st DCA 1984)…r the nine year sentence agreement and sentenced Shaw to twenty-five years. The trial court must either sentence Shaw to nine years or allow him to withdraw his guilty plea. LaBaissiere v. State, 429 So. 2d 96 (Fla. 2d DCA 1983); Nichols v. State, 403 So. 2d 1089 (Fla. 1st DCA 1981); Richmond v. State, 375 So. 2d 1132 (Fla. 1st DCA 1979). The denial of Shaw’s motion for post-conviction relief is REVERSED. The trial court is directed to sentence Shaw pursuant to the nine year agreement or permit him to with…
Authorities Cited
- State ex rel. William M. C. Wilhoit v. Wells, 356 So. 2d 817 (Fla. 1st DCA 1978)
- Richmond v. State, 375 So. 2d 1132 (Fla. 1st DCA 1979)