EUGENE PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Perry appeals the denial of his speedy trial discharge motion and his sentencing under a plea agreement. The court affirmed the speedy trial denial but reversed and remanded the sentencing, holding that when a trial court cannot honor a plea bargain, it must affirmatively give the defendant the opportunity to withdraw the plea.
The trial court correctly denied the speedy trial discharge motion, but erred in sentencing Perry to four years without affirmatively permitting him to withdraw his plea. When a trial court cannot honor the terms of a plea bargain, it must give the defendant the opportunity to withdraw the plea.
[1] A trial court must affirmatively permit a defendant to withdraw their plea when the court cannot honor the terms of a plea bargain.
[2] A defendant need not move to withdraw their plea when a trial court fails to honor a plea bargain.
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Join FLexlaw to unlock all legal intelligence“where the trial court finds that it cannot honor a plea bargain it must "affirmatively take action to permit the defendant the opportunity to withdraw his plea."”
Establishes the core holding that trial courts have an affirmative duty to allow plea withdrawal when a bargain cannot be honored
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Join FLexlaw to unlock all legal intelligencePerry entered a plea of nolo contendere with the trial court, assistant state attorney, and his counsel agreeing on a two-year sentence. After a prese…
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PER CURIAM.
The appellant contends that the trial court erred in denying his motion for speedy trial discharge and in sentencing him in violation of his plea agreement without giving him the opportunity to withdraw his plea.
After reviewing the record and the relevant case law, we conclude that the trial court was correct in denying the appellant’s motion for speedy trial discharge. See State v. Rasul, 468 So. 2d 1088 (Fla. 2d DCA 1985). Accordingly, we affirm on this point.
With respect to the second point, the record reveals the following facts. At the initial sentencing hearing the trial court, the assistant state attorney, and the appellant’s counsel agreed that the appellant would receive two years’ incarceration in exchange for his plea of nolo contendere. The appellant’s counsel represented to the trial court, without objection from the state, that this sentence was within the guidelines. The trial court accepted the appellant’s plea, ordered a presentence investigation (PSI), and deferred sentencing. The plea was not conditioned upon the results of the PSI.
At the second sentencing hearing the PSI apparently reflected more prior convictions than the parties originally thought. The guidelines range based upon the PSI was three and a half to four and a half years. The trial court inquired, “Haven’t you agreed on two years?” A different state attorney from the one at the prior hearing responded, “No, Judge. [The prior assistant state attorney] said to offer the bottom end of the guidelines, which would be three and a half years’ State Prison and if that was not acceptable to set it for trial.” The appellant’s attorney objected unsuccessfully to the scoresheet and the inclusion of some of the prior convictions listed in the PSI. The trial court accepted the score-sheet and sentenced the appellant to four years’ imprisonment.
Although the appellant did not file a motion to withdraw his plea, see e.g., Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979), we nevertheless are required to reverse his judgment and sentence and remand for further proceedings at which he must be given the opportunity to withdraw his plea.
In Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974), this court held that where the trial court finds that it cannot honor a plea bargain it must “affirmatively take action to permit the defendant the opportunity to withdraw his plea.” Id. at 689. See also Dunkel v. State, 432 So. 2d 201 (Fla. 2d DCA 1983). In Kiefer, as in the present case, the defendant did not object to his sentence in the trial court. Unlike the present case, however, the defendant’s plea bargain in Kiefer was conditioned upon a favorable PSI. We do not conclude that this distinction requires a different result than that reached in Kiefer. Thus, we hold that the trial court erred in not affirmatively taking action in permitting the appellant the opportunity to withdraw his plea when the trial court found that it could not honor the terms of his plea bargain.
Accordingly, we affirm the trial court’s denial of the appellant’s motion for speedy trial discharge, but reverse the appellant’s judgment and sentence and remand for further proceedings at which the appellant shall be given the opportunity to withdraw his plea.
RYDER, A.C.J., and HALL and SCHOONOVER, JJ., concur.
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Kit Goins v. State, 672 So. 2d 30 (Fla. 1996)…GRIMES, Chief Justice. We review Goins v. State, 652 So. 2d 1283 (Fla. 1st DCA 1995), because of its conflict [*31] with Rodriguez v. State, 610 So. 2d 476 (Fla. 2d DCA 1992), Perry v. State, 510 So. 2d 1083 (Fla. 2d DCA 1987), and Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. The court below affirmed Goins’ convictions and sentences on the premise that he failed t…
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Woods v. State, 600 So. 2d 27 (Fla. 4th DCA 1992)…he trial court refused Appellant’s counsel the opportunity to make such a motion. Where a plea bargain is not honored, the [*29] trial court must affirmatively take action to permit the defendant the opportunity to withdraw the plea. Perry v. State, 510 So. 2d 1083 (Fla. 2d DCA 1987). We therefore reverse the conviction and sentence and remand for further proceedings at which the appellant shall be given the opportunity to withdraw her plea. The appellant next challenges her conviction for contempt of court.…
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Goldberg v. State, 536 So. 2d 364 (Fla. 2d DCA 1988)…ement without giving him an opportunity to withdraw his plea. We agree. When a negotiated plea agreement cannot be honored, the defendant may withdraw his plea and the trial court has an affirmative duty to so advise the defendant. Perry v. State, 510 So. 2d 1083 (Fla. 2d DCA 1987); Ben v. State, 440 So. 2d 501 (Fla. 2d DCA 1983); Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974). Here, all parties anticipated a guidelines sentence of probation based on the appellant’s representation that he had no substa…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979)
- Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974)
- State v. Natal Rasul, 468 So. 2d 1088 (Fla. 2d DCA 1985)
- Dunkel v. State, 432 So. 2d 201 (Fla. 2d DCA 1983)