FRANK EDWARD WADE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Wade was convicted of attempted first degree murder and attempted robbery after entering guilty pleas based on incorrect sentencing advice from his attorney. The trial court denied his pre-sentencing motion to withdraw the pleas, but the appellate court reversed, holding that a defendant may withdraw a guilty plea when it was based on a material misunderstanding of sentencing consequences.
A defendant should be permitted to withdraw a guilty plea when such plea was based upon a misunderstanding or misapprehension of facts considered in making the plea, particularly when such misunderstanding is clearly demonstrated by the defendant upon motion made prior to sentencing. The trial court abused its discretion in denying Wade's pre-sentencing motion to withdraw his guilty plea.
[1] A defendant should be permitted to withdraw a guilty plea when the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in makin…
[2] When a misunderstanding or misapprehension is clearly demonstrated by the defendant upon a motion made prior to sentencing, the trial court should permit the defendant to…
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Join FLexlaw to unlock all legal intelligence“a defendant should be permitted to withdraw a guilty plea when such plea "was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea."”
Establishes the legal standard for withdrawal of guilty pleas based on misunderstandings about material facts.
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Join FLexlaw to unlock all legal intelligenceWade entered guilty pleas to attempted first degree murder with a firearm and attempted robbery with a firearm. His attorney had misinformed him that …
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HENDRY, Judge.
Appellant entered a plea of guilty to a charge under count one of attempted first degree murder with a firearm, and to a reduced charge under count two of attempted robbery with a firearm.
Six days after the plea was entered and approximately one month prior to the scheduled date for sentencing, appellant filed a motion to withdraw the plea. The sworn motion averred that appellant had been misinformed by his attorney of a sentencing guideline range of 12 to 17 years, and that after the entry of the plea, he had been apprised that he actually faced a minimum mandatory sentence of 30 years; that had he known of the 30 year minimum mandatory sentence, he would not have entered the plea; and that he was confused and misunderstood the questions of the court regarding the sentence at the time of the plea.
Upon hearing, the motion to withdraw plea was denied, although appellant’s attorney and the attorney for the prosecution acknowledged that prior to and at the time of the plea they had been under the misapprehension that the appellant could elect to be sentenced under the guidelines; they had since learned, however, that such election was unavailable and a 30 year minimum mandatory sentence applied because the life-felony offense to which appellant pled1 occurred prior to the October 1, 1983 effective date of the sentencing guidelines. Appellant’s attorney stated that his discussions with appellant prior to the entry of the plea were based on this misapprehension.
The trial court recognized, upon denying the motion to withdraw the plea, that the new sentencing guidelines did not apply.2 The court sentenced appellant under count one to a term of imprisonment of 40 years, and under count two, to a concurrent term of eight years. Appellant contends that the trial court committed reversible error in denying his motion, filed prior to sentencing, to withdraw guilty plea. We find merit in this contention and reverse.
It is well-established that a defendant should be permitted to withdraw a guilty plea when such plea “was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea.” Forbert v. State, 437 So. 2d 1079, 1081 (Fla.1983), and cases cited therein; Vaprin v. State, 437 So. 2d 177 (Fla. 3d DCA 1983). Where, as in this case, such misunderstanding or misapprehension is clearly demonstrated by the defendant upon motion made prior to sentencing, the trial court should permit the defendant to withdraw the plea in the interests of justice. Yesnes v. State, 440 So. 2d 628 (Fla. 1st DCA 1983); see also Fla.R. Crim.P. 3.170(f).
Accordingly, the judgment of the trial court is reversed and the cause is remanded with directions that the appellant’s motion to withdraw his plea of guilty be granted and a plea of not guilty be substituted therefor. Reversed and remanded with directions.
. Pursuant to Section 775.087(l)(a), Florida Statutes (1983), the offense of attempted first degree murder, a first degree felony, §§ 777.-04(4)(a), 782.04(l)(a), Fla.Stat. (1983), was reclassified to a life-felony because of the use of a firearm which was not an essential element of attempted first degree murder. . State v. Smith, 470 So. 2d 764 (Fla. 5th DCA 1985); § 921.001(4)(a), Stat. (1983).
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Eladio T. Elizagarate v. State, 488 So. 2d 129 (Fla. 3d DCA 1986)…PER CURIAM. We reject the defendant’s claim that he had a right to elect to be sentenced under the sentencing guidelines for life felonies committed prior to October 1, 1983. See. 921.001(4)(a), Fla.Stat. (1983); Wade v. State, 488 So. 2d 127 (Fla. 3d DCA 1986); State v. Smith, 470 So. 2d 764 (Fla. 5th DCA 1985). Affirmed.…
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State v. Hicks, 545 So. 2d 952 (Fla. 3d DCA 1989)…time, Hicks shall be permitted to withdraw his plea because it was premised upon his classification as a youthful offender. See State v. Hopkins, 520 So. 2d 301 (Fla. 3d DCA 1988); State v. Thomas, 516 So. 2d 1058 (Fla. 3d DCA 1987); Wade v. State, 488 So. 2d 127 (Fla. 3d DCA 1986). Reversed and remanded. . In Dixon, this court certified conflict with the Fifth District Court of Appeal, Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988) (en banc). The Florida Supreme Court has answered the certified que…
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Santa Caridad Perez v. State, 596 So. 2d 487 (Fla. 5th DCA 1992)…hdraw a plea when the plea was based upon a misunderstanding or misapprehension of the facts considered by the defendant in making the plea. Forbert v. State, 437 So. 2d 1079, 1081 (Fla.1983); Brown v. State, 245 So. 2d 41 (Fla.1971); Wade v. State, 488 So. 2d 127 (Fla. 3d DCA 1986); Yesnes v. State, 440 So. 2d 628 (Fla. 1st DCA 1983). It was also error to order restitution on the uncharged counts. The judgment and sentence are reversed and the cause is remanded to the trial court for the preparation of an o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Forbert v. State, 437 So. 2d 1079 (Fla. 1983)
- Yesnes v. State, 440 So. 2d 628 (Fla. 1st DCA 1983)
- State v. Smith, 470 So. 2d 764 (Fla. 5th DCA 1985)
- Vaprin v. State, 437 So. 2d 177 (Fla. 3d DCA 1983)