BERNARD L. GUMBINER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A court must allow a defendant to withdraw a no contest plea if it does not honor a plea bargain, even if the reason is a pre-sentence investigation report.
Appellant pled no contest to a charge based on a plea bargain for concurrent sentencing. The trial court imposed consecutive sentences without allowin…
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HOBSON, Acting Chief Judge.
Bernard L. Gumbiner raises two points on appeal. We do not find any merit as to point one. However, as to point two, he argues that the court below erred in sentencing him to consecutive terms of imprisonment on the charges in circuit court case numbers '81-1935 and 81-2264. We agree. Prior to the court’s imposition of consecutive sentences, appellant pled no.-contest to the charge in case number 81-2264 based upon a bargain with the state, tentatively approved by the court, that any sentence imposed on that charge would run concurrent with any sentence imposed on a conviction in case number 81-1935. The court thereafter imposed consecutive sentences without allowing appellant the opportunity to withdraw the no contest plea.
It is settled that if a court does not honor a plea bargain, whether through mistake or subsequent change in its approval of the agreement, it must grant the defendant the opportunity to withdraw his plea. Freeman v. State, 376 So. 2d 294 (Fla. 2d DCA 1979); Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975). Although the court below did not offer any explanation as to why it sentenced appellant to consecutive terms instead of concurrent terms, it appears that it did not honor the plea agreement because of the results of a pre-sentence investigation. Nevertheless, it was still under a duty to offer him the opportunity to withdraw the plea of no contest to the charge in case number 81-2264 before imposing consecutive sentences. See Orr v. State, 402 So. 2d 535 (Fla. 5th DCA 1981).
Accordingly, we vacate the consecutive sentences and remand with directions that the court either impose concurrent sentences or notify appellant of its intention to impose consecutive sentences and allow him the opportunity to withdraw his no contest plea. In all other respects we affirm. AFFIRMED in PART, REVERSED in PART, and REMANDED.
SCHEB and LEHAN, JJ., concur.
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Lepper v. State, 451 So. 2d 1020 (Fla. 1st DCA 1984)…udge determines he cannot later accept the recommended 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 c…
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Pumphrey v. State, 502 So. 2d 982 (Fla. 1st DCA 1987)…terms of a plea bargain, it must afford the defendant an opportunity to withdraw the plea. Moore, supra; LaBaissiere, supra; 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). See also Stanley v. State, 501 So. 2d 90 (Fla. 1st DCA 1987). Therefore, we reverse and remand with directions to the trial court to conform the sentence to the terms of the plea agreement, or to grant appellant’s motion to withd…
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Dunkel v. State, 432 So. 2d 201 (Fla. 2d DCA 1983)…r his counsel in that regard. When the terms of an earlier plea bargain are not honored, defendant should be given the opportunity to withdraw his plea, and the trial judge has an affirmative duty to so advise the defendant. See Gumbiner v. State, 429 So. 2d 828 (Fla. 2d DCA 1983); LaBaissiere v. State, 429 So. 2d 96 (Fla. 2d DCA 1983); Freeman v. State, 376 So. 2d 294 (Fla. 2d DCA 1979); Reynolds v. State, 339 So. 2d 714, 715 (Fla. 2d DCA 1976); Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975). At sentenci…
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
- Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)
- Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)
- Freeman v. State, 376 So. 2d 294 (Fla. 2d DCA 1979)
- ORR v. State, 402 So. 2d 535 (Fla. 5th DCA 1981)