CHARLES NOLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Charles Noles challenged his conviction for aggravated battery and sentence of three years' imprisonment, two years' probation, and a $250 fine. The court affirmed his conviction but found his sentence violated the rule in Villery v. Florida Parole and Probation Commission, which prohibits incarceration followed by probation from equaling or exceeding one year. The court allowed Noles to seek resentencing in the trial court.
The court held that failure to establish the factual basis for a nolo contendere plea does not require the plea to be set aside unless manifest injustice results, and no such injustice occurred here. The court agreed that the sentence violated the Villery rule prohibiting incarceration followed by probation from equaling or exceeding one year.
[1] A trial court's acceptance of a nolo contendere plea without establishing a factual basis on the record does not require the plea to be set aside unless manifest injustic…
[2] A sentence imposing a period of incarceration followed by probation cannot equal or exceed one year, whether imposed as a condition of probation or as a true split senten…
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Join FLexlaw to unlock all legal intelligence“Failure of a trial judge to establish, on the record, the factual basis for a plea does not require that the plea be set aside unless manifest injustice results.”
Establishes the standard for reviewing nolo contendere pleas lacking a factual basis on the record
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Join FLexlaw to unlock all legal intelligenceCharles Noles was convicted of aggravated battery and sentenced to three years' imprisonment followed by two years' probation and a $250 fine. Noles e…
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OTT, Judge.
Appellant challenges his conviction for aggravated battery and the sentence of three years’ imprisonment, two years’ probation and a $250 fine.
We find no merit in appellant’s first contention that it was error for the lower court to accept a nolo contendere plea without first determining whether there was a factual basis for that plea. Failure of a trial judge to establish, on the record, the factual basis for a plea does not require that the plea be set aside unless manifest injustice results. Williams v. State, 316 So. 2d 267 (Fla.1975). There is no indication from either the record or the arguments on this appeal that Noles was prejudiced in any manner which would justify vacating his plea.
In regard to appellant’s second contention, we agree that his sentence violates the rule enunciated in Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981). In Villery, the Florida Supreme Court held that a period of incarceration followed by probation imposed either as a condition of probation or under a true split sentence as authorized by section 948.01(4), Florida Statutes (1979), cannot equal or exceed one year in either instance. As noted in our recent opinion of Lewis v. State, 402 So. 2d 482 (Fla.2d DCA 1981), this gives the trial judge the option of either modifying the illegal sentence to provide that all or any portion of the remainder of the sentence shall be probation or withdrawing the original sentence and then resentencing defendant to incarceration for whatever time his offense may provide, less credit for time served. Here, the trial judge would have the option of releasing Noles on probation for the remainder of the term or resentencing him to five years in prison, less credit for time served.
Since our decision in Lewis was written subsequent to the filing of Noles’ appeal and there is the possibility that he could be resentenced to a lengthier period of incarceration, we prefer to let him raise this issue with the trial court by proper motion.
Therefore, the decision below is AFFIRMED, without prejudice to appellant to seek resentencing under Villery in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.
BOARDMAN, A. C. J., and OTT and RYDER, JJ., concur.
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Suarez v. State, 616 So. 2d 1067 (Fla. 3d DCA 1993)…rther, appellant neither contends he pleaded guilty to the wrong offense, nor that he has any defense to the charges. [*1069] There is no record indication that appellant was prejudiced in any manner to justify vacating his plea. See Noles v. State, 407 So. 2d 370 (Fla. 2d DCA 1981). Turning to appellant’s second point, we determine that appellant both accepted the habitual offender sentence and, expressly waived his right to a hearing under the habitual offender statute. Chalk v. State, 600 So. 2d 1316 (Fla…
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Adams v. State, 414 So. 2d 1079 (Fla. 1st DCA 1982)…case because appellant’s resentence of ten years does not exceed the entire term of fifteen years previously imposed. Williams v. State, 405 So. 2d 436, 437 (Fla. 1st DCA 1981); see Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981); Noles v. State, 407 So. 2d 370 (Fla. 2d DCA 1981); Joyce v. State, 404 So. 2d 850 (Fla. 4th DCA 1981). BOOTH and WENTWORTH, JJ., concur. SHAW, J., dissents in part and concurs in part with written opinion.…
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Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA 1982)…, 414 So. 2d 1079 (Fla. 1st DCA 1982), question certified, 414 So. 2d 1079 at 1081 (Fla. 1st DCA May 26,1982) [1982 FLW 1109]; Jackson v. State, 412 So. 2d 384 (Fla. 5th DCA 1982); Beech v. State, 411 So. 2d 1384 (Fla. 1st DCA 1982); Noles v. State, 407 So. 2d 370 (Fla. 2d DCA 1981); Williams v. State, 405 So. 2d 436, 437 (Fla. 1st DCA 1981); Joyce v. State, 404 So. 2d 850 (Fla. 4th DCA [*1124] 1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981). Likewise, the point that the infor-mations charging Lowe…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Williams v. State, 316 So. 2d 267 (Fla. 1975)
- Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981)