TIMOTHY LEROY FOWLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant must be advised prior to pleading guilty or nolo contendere that the court can retain jurisdiction over part of the sentence.
Fowler alleged he was not informed of the possibility of retained jurisdiction prior to pleading guilty. The state did not present evidence to the con…
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COBB, Judge.
The prior decision and the mandate issued in this cause are hereby withdrawn,1 and Fowler’s motion for post-conviction relief is granted pursuant to State v. Green, 421 So. 2d 508 (Fla.1982) and Grice v. State, 428 So. 2d 672 (Fla. 5th DCA 1982).
In Green, the Supreme Court held that “if a judge wishes to retain jurisdiction, a defendant must be advised, prior to pleading guilty or nolo contendere, that the court can retain jurisdiction over a part of the sentence.” 421 So. 2d at 510. In this case, Fowler has alleged that he was not informed of the possibility of retention pri-or to pleading guilty, and the state has not shown otherwise.
Accordingly, the cause is remanded for the trial court to either strike the retention of jurisdiction or allow Fowler to withdraw his guilty plea. As a consequence of our action in this case, Fowler’s petition for habeas corpus for belated review in Case No. 83-1418 is moot.
DECISION and MANDATE WITHDRAWN; REMANDED WITH INSTRUCTIONS.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur. . The mandate was issued on August 12, 1983, during the current term of court; therefore, this court has jurisdiction to recall it. See State Farm Mutual Automobile Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So. 2d 980 (Fla.1981); § 35.10, Fla.Stat. (1981) (regular terms of district courts of appeal to commence on the second Tuesday in January and July).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dieter Schmidt v. State, 464 So. 2d 1302 (Fla. 3d DCA 1985)…mand this cause to the trial court so that it may either strike the retention of jurisdiction, allowing the original plea to stand, or allow appellant to withdraw his nolo plea. Mrozowski v. State, 444 So. 2d 587 (Fla. 2d DCA 1984); Fowler v. State, 443 So. 2d 125 (Fla. 5th DCA 1983); Crawford v. State, 438 So. 2d 974 (Fla. 2d DCA 1983). Remanded with directions.…
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Harmon v. Barton, 894 F.2d 1268 (11th Cir. 1990)…508 (Fla.1982). It also could have been raised in a motion for post-conviction relief pursuant to Rule 3.850. See, e.g., Murray v. State, 469 So. 2d 940 (Fla.Dist.Ct.App.1985); Stanley v. State, 501 So. 2d 90 (Fla.Dist.Ct.App.1987); Fowler v. State, 443 So. 2d 125 (Fla.Dist.Ct.App.1983). The state court concluded that, consistent with state law, Harmon was procedurally barred from pursuing his claim because he neither raised the issue on direct appeal nor raised it in his first post-conviction motion and did…
Authorities Cited
- State Farm Mut. Auto. Ins. Co. v. Judges OF the Dist. Court OF Appeal, 405 So. 2d 980 (Fla. 1981)
- State v. Green, 421 So. 2d 508 (Fla. 1982)
- Grice v. State, 428 So. 2d 672 (Fla. 5th DCA 1982)