MICHAEL L. DOMINQUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Dominquez pleaded nolo contendere to forgery and uttering forged instruments after negotiations regarding concurrent sentencing. The trial court denied his motion to withdraw the plea when confusion arose about whether new sentences would run concurrently with previously imposed sentences. The appellate court reversed, finding the confusion about plea terms required the trial court to allow withdrawal.
The trial court should have allowed appellant to withdraw his plea because there was genuine confusion and legitimate disagreement regarding the terms of the plea negotiation.
[1] A defendant may appeal issues concerning the voluntary or intelligent character of a nolo contendere plea when the defendant moved to withdraw the plea.
[2] A trial court should allow a defendant to withdraw a nolo contendere plea when there is confusion and legitimate disagreement as to the terms of the plea agreement.
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Join FLexlaw to unlock all legal intelligence“The record indicates that there was confusion and legitimate disagreement as to the terms of the plea negotiation. Under such circumstances, the trial court should have allowed appellant to withdraw his plea.”
Establishes the standard that when plea terms are ambiguous or disputed, courts must allow withdrawal to protect the voluntariness and intelligence of the plea.
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Join FLexlaw to unlock all legal intelligenceAppellant initially pled not guilty but changed his plea after Judge Swanson agreed to sentence him to five concurrent years on each charge. Before se…
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OTT, Chief Judge.
Appellant pled nolo contendere to eight counts of uttering a forged instrument and two counts of forgery. He argues on appeal that the trial court should have granted his motion to withdraw the pleas because there was confusion as to the terms of a plea agreement. We reverse.
Appellant initially entered pleas of not guilty. At a change of plea hearing, Judge Swanson agreed to sentence appellant to five years on each charge, to be served concurrently, as recommended by the assistant state attorney. Appellant’s attorney informed the judge that he had reason to believe additional charges might be filed. The assistant state attorney present at the hearing had no knowledge of other charges. The following exchange occurred:
MR. TAYLOR [appellant’s attorney]: If they come up do you have any objection to a similar disposition?
MR. HELINGER [assistant state attorney]: None at all if they occur around the same period of time.
Judge Swanson made no comment. Sentencing was continued pending completion of a pre-sentence investigation.
Other charges were filed, and appellant pled guilty before and was sentenced by Judge Penick to five-year concurrent sentences on the later charges prior to appearing before Judge Swanson for sentencing.
At the subsequent sentencing hearing before Judge Swanson, appellant’s attorney stated that there was some confusion as to whether the sentences to be imposed that day would or should be concurrent with those imposed earlier by Judge Penick. Appellant’s attorney argued that the state had agreed that all sentences were to be concurrent. A different assistant state attorney than had been present at the plea hearing argued that the state never represented that the sentences would be concurrent with any new charges. Judge Swanson frankly admitted that he had no recollection of what his intentions were at the plea hearing and commented that the pre-sen-tence investigation reflected that appellant had committed a series of forgeries in the past for which he had received probation. Judge Swanson announced that appellant would be sentenced to five years for each charge, concurrent only as to those charges before him. The sentences would be silent concerning whether they would be concurrent with the sentences handed down by Judge Penick.
Noting that the effect of silence would be consecutive sentences, appellant’s attorney asked that appellant be given an opportunity to withdraw his plea. This request was denied.
We initially note that appellant did not expressly reserve the right to appeal any issue. However, because the record raises issues concerning the voluntary or intelligent character of the plea, and because appellant moved to withdraw the plea, this case is subject to review on direct appeal. Robinson v. State, 373 So. 2d 898 (Fla.1979).
The record indicates that there was confusion and legitimate disagreement as to the terms of the plea negotiation. Under such circumstances, the trial court should have allowed appellant to withdraw his plea. Reynolds v. State, 339 So. 2d 714 (Fla. 2d DCA 1976).
Accordingly, the judgments and sentences are vacated, and the case is remanded to allow appellant the opportunity to withdraw his plea. Should appellant decide not to withdraw his plea, the trial court should reinstate the previous judgments and sentences.
SCHEB and LEHAN, JJ, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Mantle v. State, 592 So. 2d 1190 (Fla. 5th DCA 1992)…for M.D.S.O. program but sentence imposed made him ineligible); Bullard v. State, 477 So. 2d 655 (Fla. 2d DCA 1985) (trial attorney erroneously told defendant his maximum sentence would be 5 years; he was sentenced to 15 years); Dominquez v. State, 432 So. 2d 799 (Fla. 2d DCA 1983) (there was “confusion” as to the plea bargain). In this case, the record shows that Mantle, his counsel, and the prosecutor were all mistaken as to the maximum sentence for sexual battery and the applicable guidelines range for t…
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Derwin Jay Perkins v. State, 647 So. 2d 202 (Fla. 1st DCA 1994)…r an issue regarding the voluntariness of a plea of guilty under Robinson, however, the issue presented on direct appeal must be an issue that the trial court was asked to resolve in the prior motion to withdraw the plea. Compare Dominquez v. State, 432 So. 2d 799 (Fla. 2d DCA 1983) (appellate court considered defendant’s specific argument regarding the voluntary and intelligent nature of his guilty plea where he presented the identical argument to the trial court in his motion to withdraw the plea) with Brow…
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Scott v. State, 499 So. 2d 29 (Fla. 2d DCA 1986)…sunderstanding on his part as to the consequences of his plea. The record supports the defendant’s claim. Under such circumstances, a defendant should be allowed to withdraw his plea. Thompson v. State, 351 So. 2d 701 (Fla.1977); Dominquez v. State, 432 So. 2d 799 (Fla. 2d DCA 1983). Accordingly, we reverse with directions that the defendant be allowed to withdraw his plea of guilty. LEHAN and HALL, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Reynolds v. State, 339 So. 2d 714 (Fla. 2d DCA 1976)