STEVEN VIARS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant must be advised of the possibility of retained jurisdiction when entering a plea, and failure to do so is grounds for post-conviction relief.
Viars pleaded nolo contendere to burglary and sexual battery without being advised of the possibility of retained jurisdiction. His petition for post-…
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MILLS, Judge.
Viars appeals denial of his petition for post-conviction relief. We reverse and remand.
Viars was adjudicated guilty of burglary and sexual battery after a negotiated plea of nolo contendere. His appeal to this court resulted in a per curiam affirmance. Simultaneously with that decision, this court issued its opinion in Green v. State, 406 So. 2d 1148 (Fla. 1st DCA 1981).
In Green, this court ruled that a defendant did not understand a guilty plea or its consequences if not advised of the possibility of one-third retained jurisdiction. The case was remanded so that Green could withdraw his plea or the retention of jurisdiction be struck. In Viars’ case, jurisdic tion was retained over the first one-third of the sentence. He contends that he was never advised of the possibility of retained jurisdiction.
A failure to understand the consequences of a plea is an appropriate ground for post-conviction relief pursuant to Rule of Criminal Procedure 3.850. The decision in Green requires reversal so that the trial court may determine if Viars was advised of the possibility of retained jurisdiction and, if not, for further proceedings as spelled out in Green. If Viars was properly informed, the denial of relief should be accompanied by portions of the record indicating this.
The decision in Green is under review by the Florida Supreme Court. The mandate in this case shall be withheld until the time for seeking review in the Supreme Court expires and the disposition of review, if sought.
McCORD and SHIVERS, JJ., concur.
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Archer v. State, 604 So. 2d 561 (Fla. 1st DCA 1992)…nderstanding of its consequences, his remedy is through either a motion to vacate his plea, see Robinson v. State, 373 So. 2d 898 (Fla.1979), or a motion to vacate his judgment and sentence under Rule of Criminal Procedure 3.850, see Viars v. State, 415 So. 2d 75 (Fla. 1st DCA1982). Because Archer has submitted neither motion to the trial court, he is entitled to no relief due to any misunderstanding as to the consequences of his plea. Archer also argues that he was not properly evaluated. As we indicated i…
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Shofner v. State, 433 So. 2d 657 (Fla. 1st DCA 1983)…trial court wishes to retain jurisdiction over a portion of a defendant’s sentence, it must, prior to accepting a plea of guilty or nolo contendere, advise the defendant of this possibility. State v. Green, 421 So. 2d 508 (Fla.1982); Viars v. State, 415 So. 2d 75 (Fla. 1st DCA 1982). Because Shofner was never so advised, the trial court erred in retaining jurisdiction over the first one-third of his sentence. Accordingly, this case is remanded to allow the trial court either to strike the retention of juri…
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McINTYRE v. State, 427 So. 2d 1108 (Fla. 3d DCA 1983)…81). Since the record shows that McIntyre neither objected to this aspect of the sentence nor sought to withdraw the plea on that ground below, the point— which essentially concerns the voluntariness and knowledgeability of the plea, Viars v. State, 415 So. 2d 75 (Fla. 1st DCA 1982)— may not be raised on this direct appeal. Robinson v. State, 373 So. 2d 898 (Fla.1979); Ratushinak v. State, 425 So. 2d 1204 (Fla. 3d DCA 1983); Medina v. State, 411 So. 2d 323 (Fla. 5th DCA 1982); Griffin v. State, 403 So. 2d 62…
Authorities Cited
- Green v. State, 406 So. 2d 1148 (Fla. 1st DCA 1981)