JAMES STANLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Stanley appealed an order summarily denying postconviction relief under Florida Rule of Criminal Procedure 3.850. The court found merit in Stanley's claim that he was not advised of the trial court's authority to retain jurisdiction over one-third of his sentence and reversed and remanded for further proceedings on that claim.
The court found merit only in Stanley's first claim that he was not advised of the trial court's authority to retain jurisdiction over one-third of his sentence. The court reversed the summary denial and remanded for the trial court to either attach record portions showing no entitlement to relief or allow the state to file an answer.
[1] A defendant must be advised prior to pleading nolo contendere that the court is authorized to retain jurisdiction over a portion of the sentence.
[2] If a trial court decides not to impose a sentence in accordance with a plea bargain, it must give the defendant the opportunity to withdraw the plea.
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Join FLexlaw to unlock all legal intelligence“If a trial judge wishes to retain jurisdiction, a defendant must be advised prior to pleading nolo contendere that the court is authorized to retain jurisdiction over a portion of his sentence.”
Establishes the legal requirement for advisement that Stanley claims was violated
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Join FLexlaw to unlock all legal intelligenceStanley entered a nolo contendere plea to armed robbery, auto theft, and leaving the scene of an accident. The trial court imposed consecutive sentenc…
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SMITH, Judge.
This is an appeal from an order summarily denying postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We find it necessary to reverse and remand.
Appellant’s motion for postconviction relief essentially raised four claims: (1) inducement of nolo contendere plea without full disclosure of consequences of plea; (2) illegal retention of jurisdiction over one-third of sentence; (3) ineffective assistance of counsel; and (4) denial of right to appeal.
We find merit only with respect to appellant’s first claim. Appellant alleges that he was not advised of the trial court’s authority to retain jurisdiction over one-third of his sentence. This charge, if true, would entitle appellant to relief. If a trial judge wishes to retain jurisdiction, a defendant must be advised prior to pleading nolo contendere that the court is authorized to retain jurisdiction over a portion of his sentence. State v. Green, 421 So. 2d 508 (Fla.1982); Jackson v. State, 497 So. 2d 962 (Fla. 1st DCA 1986).
Appellant further alleges that the trial court did not reduce count one to robbery as per the nolo contendere agreement. Again, if true, appellant is entitled to relief. Although the court is not bound to follow the terms of the plea bargain, it must give appellant the opportunity to withdraw his plea once it decides not to impose a sentence in accordance with the bargain. Fla.R.Crim.P. 3.172(g); Davis v. State, 308 So. 2d 27 (Fla.1975); Moore v. State, 489 So. 2d 1215 (Fla. 2d DCA 1986).
As to appellant’s allegation that he was not advised of which issues could be reserved for appeal, we note that Florida Rule of Criminal Procedure 3.172(c)(iv) requires the trial court to inform the defendant that a plea of nolo contendere forecloses appellate review of all issues not expressly reserved. However, appellant has not alleged any facts which would support appealable issues in this context.
Since the trial court’s order denying relief fails to have attached portions of the record demonstrating that appellant is entitled to no relief, the portion of the trial court’s order pertaining to the first claim is reversed and the cause remanded to the trial court. On remand, the trial court may either again summarily deny the motion as to these allegations and attach to the order those portions of the record which conclusively show that appellant is not entitled to relief, or order the state attorney to file an answer or other pleading pursuant to the provisions of Florida Rule of Criminal Procedure 3.850. Jackson v. State, supra.
Appellant’s second claim is without merit. Section 947.16(3), Florida Statutes (1981), authorizes the trial court to retain jurisdiction over a defendant who commits certain enumerated crimes, such as robbery. The statute also provides that “when any person is convicted of two or more felonies and consecutive sentences are imposed, then the jurisdiction of the trial court judge ... shall apply to one-third of the total consecutive sentences imposed.” In the instant case, appellant pled nolo contendere to armed robbery, auto theft and leaving the scene of an accident. All three crimes were felonies, and the court imposed consecutive sentences of 45 years, 5 years, and 1 year, respectively. The trial court retained jurisdiction of 17 years (one-third of the total consecutive sentences imposed).
Appellant’s third claim, ineffective assistance of counsel, is likewise without merit. Appellant's reference to “guidelines” is unclear. However, the sentencing guidelines were not in effect when appellant was sentenced, and the motion is facially insufficient to show entitlement to relief on this ground. Irby v. State, 454 So. 2d 757 (Fla. 1st DCA 1984). The only fact alleged in appellant’s 3.850 motion in support of this claim is that his defense counsel refused appellant’s request to reserve for appeal the trial court’s failure to follow “prescribed guidelines for proper sentencing.”
Appellant’s fourth and last claim is also without merit. A plea of nolo conten-dere forecloses appeal of any issue, not specifically reversed for appellate review other than the facial sufficiency of the charging document. Santos v. State, 380 So. 2d 1284 (Fla.1980).
REVERSED and REMANDED.
SHIVERS and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pumphrey v. State, 502 So. 2d 982 (Fla. 1st DCA 1987)…ortunity to withdraw the plea. Moore, supra; LaBaissiere, supra; Coleman v. State, 433 So. 2d 627 (Fla. 2d DCA 1983); Dunkel v. State, 432 So. 2d 201 (Fla. 2d DCA 1983); Gumbiner v. State, 429 So. 2d 828 (Fla.2d DCA 1983). See also Stanley v. State, 501 So. 2d 90 (Fla. 1st DCA 1987). Therefore, we reverse and remand with directions to the trial court to conform the sentence to the terms of the plea agreement, or to grant appellant’s motion to withdraw his plea. SMITH and BARFIELD, JJ., concur.…
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State v. Smith, 507 So. 2d 1209 (Fla. 4th DCA 1987)…owing the defendant’s plea of guilty. The defendant [*1210] disagrees but further argues that if the trial court erred, he should be able to withdraw his plea of guilty, citing State v. Walden, 476 So. 2d 771 (Fla. 3d DCA 1985) and Stanley v. State, 501 So. 2d 90 (Fla. 1st DCA 1987). We hold that the trial court erred in departing below the guidelines sentence because its stated reason lacked any eviden-tiary basis in the record. See Tanner v. State, 468 So. 2d 505 (Fla.2d DCA 1985); Wyman v. State, 459 So…
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Lightfoot v. State, 533 So. 2d 930 (Fla. 1st DCA 1988)…PER CURIAM. Appellant’s timely motion to withdraw his plea, which was made after the trial judge refused the jointly recommended sentence of the state and defense counsel, should have been granted. Stanley v. State, 501 So. 2d 90 (Fla. 1st DCA 1987). Because the appellant is still on probation, his case is not moot. REVERSED and REMANDED. ERVIN, WENTWORTH and ZEHMER, JJ., concur.…
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
- Vikki Zimmerman Davis v. State, 308 So. 2d 27 (Fla. 1975)
- State v. Green, 421 So. 2d 508 (Fla. 1982)
- Santos v. State, 380 So. 2d 1284 (Fla. 1980)
- Rayfield Moore v. State, 489 So. 2d 1215 (Fla. 2d DCA 1986)
- Jackson v. State, 497 So. 2d 962 (Fla. 1st DCA 1986)
- Irby v. State, 454 So. 2d 757 (Fla. 1st DCA 1984)