CARROLL DENNIS FORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Carroll Dennis Ford appeals the summary denial of his post-conviction motion challenging the voluntariness of his nolo contendere plea. The appellate court reversed and remanded, holding that the trial court failed to provide an evidentiary hearing on his allegation that he was not informed of the maximum sentence he could receive if his probation was revoked.
The court held that if Ford's allegation that he was unaware of the maximum sentence upon probation revocation is true, he would be entitled to relief. The trial court erred in summarily denying his motion without either holding an evidentiary hearing or attaching record portions that conclusively refuted his allegation.
[1] A defendant is entitled to post-conviction relief if their nolo contendere plea was involuntarily entered due to a failure to inform them of the maximum sentence upon rev…
[2] A trial court must either attach record portions conclusively refuting a post-conviction claim or conduct an evidentiary hearing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Such claim, if true, would entitle him to relief. See Florida Rule of Criminal Procedure 3.172(c)(i).”
Establishes that lack of knowledge of direct consequences of a plea (maximum sentence upon probation revocation) entitles defendant to relief
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFord was charged with obtaining property by worthless check. After a jury was impaneled, he entered a plea of nolo contendere pursuant to a plea barga…
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HOBSON, Acting Chief Judge.
Carroll Dennis Ford appeals an order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand.
Appellant was charged with obtaining property valued at one hundred dollars by means of a worthless check, in violation of section 832.05, Florida Statutes (1979). After a jury was impanelled to try the case, appellant, pursuant to a plea bargain, changed his plea from not guilty to nolo contendere. The trial court thereupon filed an order withholding adjudication of guilt and placing him on probation. Subsequently, the court revoked his probation and then rendered an order adjudicating him guilty and sentencing him to a five-year term of imprisonment, the statutory maximum. See § 775.082(3)(d), Fla.Stat. (1979).
Appellant alleged in his Rule 3.850 motion that his nolo contendere plea was involuntarily entered in that the trial court purportedly failed to inform him of the maximum sentence he could receive on the charge if his probation was revoked. He asserted, in other words, that he was unaware of the direct consequences of the plea. Such claim, if true, would entitle him to relief. See Florida Rule of Criminal Procedure 3.172(c)(i). Cf. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760 (1970); Green v. State, 406 So. 2d 1148 (Fla. 1st DCA 1981), affirmed, 421 So. 2d 508 (Fla.1982).1 However, the court below neither held an evidentiary hearing with respect to the allegation nor attached portions of the record below to its summary order which conclusively refute such allegation.
On a different matter, as appellant and the state point out, the written judgment of guilt incorrectly indicated that appellant was tried and found guilty of the crime. Accordingly, we reverse the order denying the motion and remand with instructions that the court below either summarily deny the motion again and, if so, attach portions of the record below which conclusively demonstrate that appellant is not entitled to relief, or, if the record does not definitely refute the allegation, conduct an evidentiary hearing in order to determine whether he is entitled to relief. See, e.g., Meeks v. State, 382 So. 2d 673 (Fla.1980); Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983); Jones v. State, 421 So. 3d 55 (Fla. 1st DCA 1982). In order to obtain further review of any subsequent ruling of the court below, the aggrieved party must appeal anew. We also direct the court on remand to correct the written judgment to reflect that appellant entered a plea of nolo contendere.
REVERSED and REMANDED.
RYDER and LEHAN, JJ., concur. . After a sentence is imposed following a plea, the burden is on the defendant to prove that a manifest injustice has occurred. LeDuc v. State, 415 So. 2d 721 (Fla.1982); Williams v. State, 316 So. 2d 267 (Fla.1975). By showing that a plea has been entered involuntarily or without knowledge that the sentence imposed could be imposed, the defendant proves a manifest injustice. As stated in the ABA Standards Relating to the Administration of Criminal Justice, Pleas of Guilty, 14-2.1 (1979), quoted with approval in Williams, 316 So. 2d at 273-74,
Plea withdrawal.
(ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:
(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; ....
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lane v. State, 839 So. 2d 854 (Fla. 1st DCA 2003)…lant’s first and second claims are facially sufficient and should not have been summarily denied. As to the first claim, a plea is involuntary if a defendant pleads to a crime when he is unaware of the maximum penalty of such crime. Ford v. State, 433 So. 2d 1335 (Fla. 2d DCA 1983); Fla. R.Crim. P. 3.172(c)(1)- Appellant alleged that neither the trial court nor his counsel informed him of the statutory maximum of the crime, and that his counsel affirmatively misadvised him that his sentence would have a cap…
Authorities Cited
- Brady v. United States, 397 U.S. 742 (U.S. 1970)
- Williams v. State, 316 So. 2d 267 (Fla. 1975)
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- State v. Green, 421 So. 2d 508 (Fla. 1982)
- Halpin v. State, 428 So. 2d 703 (Fla. 2d DCA 1983)
- LeDUC v. State, 415 So. 2d 721 (Fla. 1982)
- Green v. State, 406 So. 2d 1148 (Fla. 1st DCA 1981)