STATE OF FLORIDA, APPELLANT,
v.
OLIVER MCCLAIN, APPELLEE
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Florida appeals a trial court's post-plea judgment where the court unilaterally removed a firearm allegation from one robbery charge and dismissed another robbery charge without the prosecution's consent. The appellate court holds that once charges are refiled after a plea is set aside, the defendant can only plead to lesser charges with consent from both the court and the prosecutor, and reverses the sentence.
The trial court lacked jurisdiction and authority to amend the information without the prosecuting attorney's consent. Once charges are refiled following vacation of a plea, a defendant may only plead to lesser charges with consent of both the court and the prosecuting attorney under Florida Rule of Criminal Procedure 3.170(g).
[1] A trial court errs when it dismisses a charge or amends a charge without the consent of the state, absent a valid plea agreement to the contrary.
[2] When a prior judgment and sentence are set aside, the state may prosecute the defendant on the original charges.
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Join FLexlaw to unlock all legal intelligence“Once these charges were refiled, the defendant could only plead to lesser charges with the consent of the court and of the prosecuting attorney.”
Establishes the legal requirement that modifications to refiled charges require both court and prosecutor consent
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Join FLexlaw to unlock all legal intelligenceMcClain was originally charged with two counts of robbery with a firearm. Under a plea bargain, the state nolle prossed one count and removed the fire…
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SCHOONOVER, Judge.
The State of Florida appeals the judgment and sentence entered by the trial court after the defendant, Oliver McClain, pled guilty to two counts of robbery. We find that the trial court erred when, without the consent of the state, it dismissed one of the charges filed against McClain and, on its own motion, amended the other charge.
McClain was originally charged by an information with two counts of robbery with a firearm. The state, pursuant to a plea bargain, nolle prossed one count of the information and removed the firearm allegation from the other count. The state also agreed that McClain would serve no more than ten years imprisonment on the remaining robbery charge. The court accepted the plea bargain and, after McClain pled guilty, sentenced him to serve nine years imprisonment. McClain’s subsequent motion for postconviction relief was granted on the ground that the attorney who represented him at the plea taking proceeding was not a member of the Florida Bar, and the judgment and sentence were set aside.
The state then filed a new information charging McClain with the original two counts of robbery with a firearm. McClain pled guilty as charged to the new information, and a factual basis for both robberies was presented to the court. No new plea bargain had been discussed at that point in the proceedings. After having inquired concerning the terms of the original plea bargain, however, the court, without seeking the consent of the state, removed the firearm allegation from the first charge of robbery and sentenced the defendant to three years imprisonment on that charge. Although the court did not make any oral pronouncement concerning the second charge, the judgment and sentence subsequently entered indicate that the second charge was dismissed. The state objected to the sentence and filed a timely notice of appeal.
When the court set aside McClain’s original plea, it was as if a plea had never been entered ab initio, Bell v. State, 262 So. 2d 244 (Fla. 4th DCA), cert. denied, 265 So. 2d 50 (Fla.1972), and the state had the option of prosecuting the defendant on the original charges. Snell v. State, 388 So. 2d 1353 (Fla. 5th DCA 1980). Once these charges were refiled, the defendant could only plead to lesser charges with the consent of the court and of the prosecuting attorney. Fla.R.Crim.P. 3.170(g). Since the prosecuting attorney did not consent to the court’s amendment of the information by deleting the firearm from one charge and dismissing the other, the court did not have the jurisdiction or authority to take this action, Cox v. State, 412 So. 2d 354 (Fla.1982), and the state’s objection to the sentence imposed as a result thereof was sufficient to preserve the question for appeal.
We, accordingly, reverse and remand for proceedings consistent herewith.
Reversed and Remanded.
SCHEB, A.C.J., and THREADGILL, J., concur.
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Donneco King v. State, 870 So. 2d 69 (Fla. 2d DCA 2003)…State’s motion and vacate the final, unappealed orders allowing King to withdraw his pleas. Therefore, we reverse the order denying postconviction relief and remand for the State to proceed as if a plea had never been entered. See State v. McClain, 509 So. 2d 1360, 1361 (Fla. 2d DCA 1987) [*71] (‘When the court set aside McClain’s original plea, it was as if a plea had never been entered ab initio, and the state had the option of prosecuting the defendant on the original charges.”) (citations omitted); Willia…
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Williams v. State, 762 So. 2d 990 (Fla. 4th DCA 2000)…he motion to withdraw appellant’s plea. When a plea of guilty or nolo contendere is withdrawn and accepted by the court, it is as if the plea had never been entered ab initio. See Miles v. State, 620 So. 2d 1075 (Fla. 2d DCA 1993); State v. McClain, 509 So. 2d 1360 (Fla. 2d DCA 1987); Bell v. State, 262 So. 2d 244 (Fla. 4th DCA), cert. denied, 265 So. 2d 50 (Fla.1972). We therefore find that the trial court erred in granting the [*992] motion to reconsider and in setting aside appellant’s withdrawal of his ple…
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State v. Vesquez, 755 So. 2d 674 (Fla. 4th DCA 1999)…diction or authority ... to accept the plea,” so double jeopardy did not attach. Cox, 412 So. 2d at 356; see State v. Warner, 721 So. 2d 767 (Fla. 4th DCA 1998), review granted, Table No. 94,-842, 732 So. 2d 328 (Fla. May 4, 1999); State v. McClain, 509 So. 2d 1360 (Fla. 2d DCA 1987); State v. Mitchell, 486 So. 2d 63 (Fla. 4th DCA 1986). Under the case law, the consent of the prosecutor is necessary for a court to accept a plea to a lesser offense than that charged in an information. If a court acts without c…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bell v. State, 262 So. 2d 244 (Fla. 1st DCA 1972)
- COX v. State, 412 So. 2d 354 (Fla. 1982)
- Bell v. State, 265 So. 2d 50 (Fla. 1972)
- Brown v. State, 265 So. 2d 50 (Fla. 1972)
- Snell v. State, 388 So. 2d 1353 (Fla. 5th DCA 1980)