EDWARD BEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A court must permit a defendant to withdraw a nolo contendere plea if it determines not to follow the plea bargain, even if the defendant engaged in fraud.
Defendant pled nolo contendere to robbery under a plea bargain, reserving the right to appeal a motion to dismiss. The PSI revealed a prior felony con…
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GRIMES, Judge.
Edward Ben appeals his conviction and sentence for robbery after the trial court denied his motion to withdraw his nolo con-tendere plea.
Pursuant to a plea bargain, Ben pled nolo contendere to a charge of robbery, reserving his right to appeal a motion to dismiss. At that time his counsel represented to the court that Ben’s only prior conviction had been for a traffic violation. The plea bargain contemplated that Ben could receive any sentence from probation up to two years in prison. The court withheld adjudication of guilt, and then ordered a presen-tence investigation.
The subsequent PSI revealed that Ben was also known as Edward Lee Gallon and that he had a prior felony conviction under the Gallon name. At sentencing his counsel stated that he had not previously been aware of Ben’s second identity or record. Nevertheless, counsel requested that the court either abide by its original disposition of the case or else permit Ben to withdraw his plea. The court denied the motion on the basis that Ben had attempted to perpetrate a fraud upon the court. The court then sentenced Ben to ten years imprisonment as an habitual offender. This case is controlled by our decision in Coleman v. State, 433 So. 2d 627 (Fla. 2d DCA 1983), which requires the court to permit even a fraudulent defendant to withdraw his plea if it determines not to follow the plea bargain. In Coleman we did suggest two alternatives for dealing with the problem of material misrepresentations by a defendant or his counsel in a plea bargain situation. Although we do not condone Ben’s behavior in any manner, he should have been given the opportunity to withdraw his plea.
In light of our disposition on point I, we need not reach Ben’s other issue.
REVERSED and REMANDED with directions to offer Ben the opportunity to withdraw his plea.
HOBSON, A.C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Goldberg v. State, 536 So. 2d 364 (Fla. 2d DCA 1988)…w his plea. We agree. When a negotiated plea agreement cannot be honored, the defendant may withdraw his plea and the trial court has an affirmative duty to so advise the defendant. Perry v. State, 510 So. 2d 1083 (Fla. 2d DCA 1987); Ben v. State, 440 So. 2d 501 (Fla. 2d DCA 1983); Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974). Here, all parties anticipated a guidelines sentence of probation based on the appellant’s representation that he had no substantial prior criminal record. When a presentence i…
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Goff v. State, 498 So. 2d 1035 (Fla. 1st DCA 1986)…first involves a factual situation wherein the trial judge, after accepting a plea, discovers an undisclosed record and refuses to impose the specific term of years agreed on. See Williams v. State, 448 So. 2d 1236 (Fla. 1st DCA 1984); Ben v. State, 440 So. 2d 501 (Fla. 2d DCA 1983); Coleman v. State, 433 So. 2d 627 (Fla. 2d DCA 1983). In the second, the trial judge complies with the agreement, but the defendant was induced to enter the plea by some “mistake or misunderstanding.” See Tobey v. State, 458 So. 2…
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Jackson v. State, 483 So. 2d 90 (Fla. 2d DCA 1986)…ial court would not have to allow a defendant to withdraw a plea if the court states, before it accepts the plea, that any misrepresentations subsequently revealed would release the court from honoring the negotiated sentence. See also Ben v. State, 440 So. 2d 501, 502 (Fla. 2d DCA 1983). Additionally, this court has also stated that in order for a court to refuse a request to withdraw a plea after the defendant violated certain conditions, the defendant must have expressly agreed to the conditions imposed by…
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- Coleman v. State, 433 So. 2d 627 (Fla. 2d DCA 1983)