HUMBERTO PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Humberto Perez appealed his convictions for drug trafficking and possession, challenging the validity of his nolo contendere plea. The Florida appellate court reversed and remanded, holding that the trial court failed to properly advise Perez of mandatory minimum penalties through an interpreter and that the record demonstrated Perez lacked a full understanding of the nature and consequences of his plea.
The court held that the trial court erred in denying Perez's motion to withdraw his nolo contendere plea because the defendant was not adequately advised of minimum mandatory penalties through an interpreter and did not understand the nature and consequences of his plea. The plea was therefore not intelligently and voluntarily entered.
[1] A plea of nolo contendere, like a guilty plea, is a conviction and requires a knowing, intelligent, and voluntary waiver of constitutional rights.
[2] A trial court must affirmatively establish on the record that a defendant's plea was knowingly, intelligently, and voluntarily entered.
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Join FLexlaw to unlock all legal intelligence“Such advice is necessary in order that a guilty or nolo contendere plea may be intelligently and voluntarily entered.”
Establishes the legal requirement that defendants must be advised of minimum mandatory penalties for a valid plea
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Join FLexlaw to unlock all legal intelligencePerez was charged with trafficking and possession of methaqualone, possession of phenobarbitol, and trafficking in cocaine. At the plea hearing, the t…
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LEHAN, Judge.
Defendant appeals judgments and sentences for trafficking, possession, and delivery of methaqualone, possession of phe-nobarbitol, and trafficking in cocaine, viola tions of sections 893.135 and 893.13, Florida Statutes (1981). Defendant filed a pro se brief after defense counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree with defendant’s contentions that the trial court erred in denying the defendant’s motion to withdraw his nolo contendere plea.
At a combined change of plea and sentencing hearing, the court appointed an interpreter to assist in the proceeding because defendant was incapable of communicating in English. However, the trial court’s inquiry of defendant to determine the voluntariness of defendant’s plea pursuant to Florida Rule of Criminal Procedure 3.172(c) began before the interpreter’s participation in the proceeding had begun. In particular, the record reflects that the defendant was not advised, through the interpreter, on the possible minimum mandatory penalties which could be imposed. Such advice is necessary in order that a guilty or nolo contendere plea may be intelligently and voluntarily entered. See State v. Wilson, 395 So. 2d 520 (Fla.1981); Thomas v. State, 386 So. 2d 859 (Fla. 2d DCA 1980); Fla.R.Crim.P. 3.172(c)(i). Defendant adequately preserved this issue for appeal by moving to withdraw his plea. Robinson v. State, 373 So. 2d 898 (Fla.1979); Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979).
The record also indicates that defendant lacked a full understanding of the court proceeding. For example, when asked if he understood that he was giving up certain rights by entering a plea, defendant responded:
THE INTERPRETER: The only people that he knows that would help him out are his parents and his wife but they weren’t when, you know, they weren’t with him when it happened and they don’t speak English anyway.
Additionally, during the prosecutor’s statement of the factual basis for the plea, defendant complained that he did not know what the prosecutor was talking about. Finally, after sentence was imposed, defendant questioned why he was sentenced to fifteen years (the minimum penalty for trafficking in methaqualone in the amounts charged).
Taken as a whole, the record shows that the defendant did not understand the nature and consequence of his plea. He should have been allowed to withdraw the plea. See Williams v. State, 365 So. 2d 460 (Fla. 1st DCA 1978).
We therefore reverse and remand so that defendant may have the opportunity to enter a voluntary and intelligent plea or stand trial. Of course, if defendant again enters a plea, the trial court, in accordance with Florida Rule of Criminal Procedure 3.172(a), will satisfy itself that there is a factual basis for the charge of trafficking in cocaine. We do not see such a basis in the record.
REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.
OTT, C.J., and HOBSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Harrison v. State, 562 So. 2d 827 (Fla. 2d DCA 1990)…tion of Palmer v. State, 438 So. 2d 1 (Fla.1983). However, a court is required to advise a defendant of any minimum penalties involved in the offense(s) to which he is pleading, and a failure to do so may render the plea involuntary. Perez v. State, 449 So. 2d 407 (Fla. 2d DCA 1984). The court is also obliged to honor plea bargains calling for a specific sentence arrangement, or, if it cannot, to afford the accused the chance to withdraw his plea. Devard v. State, 504 So. 2d 28 (Fla. 2d DCA 1987). Without the…
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Clifford v. State, 513 So. 2d 772 (Fla. 2d DCA 1987)…is true, and Clifford was not otherwise apprised of the mandatory minimum sentence prior to the acceptance of his plea, Clifford might be entitled to withdraw the plea. See, e.g., McLendon v. State, 502 So. 2d 101 (Fla. 2d DCA 1987); Perez v. State, 449 So. 2d 407 (Fla. 2d DCA 1984). Although a review of the plea colloquy might very well have resolved this motion, the circuit court did not attach to its order any evidence from the record refuting Clifford’s claim. Instead, the court found that Clifford’s con…
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Morgan v. State, 513 So. 2d 774 (Fla. 2d DCA 1987)…t fifteen year term. He now claims not to have been made aware that the murder sentence required a mandatory twenty-five year minimum prison term.* If Morgan’s assertion is correct, he may be entitled to withdraw his plea. See, e.g., Perez v. State, 449 So. 2d 407 (Fla. 2d DCA 1984). In response to the motion the trial court attached the transcript of a plea colloquy and a rights waiver form signed by Morgan. The specific allegations of Morgan’s motion are not refuted by the attachments. Although the transcri…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979)
- State v. Wilson, 395 So. 2d 520 (Fla. 1981)
- Williams v. State, 365 So. 2d 460 (Fla. 1st DCA 1978)
- Thomas v. State, 386 So. 2d 859 (Fla. 2d DCA 1980)