DERRICK L. DELK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Delk appealed his guilty pleas and sentences in two cases, challenging the trial court's acceptance of his plea, the structure of his sentences, and the imposition of community service. The appellate court affirmed the convictions and sentences as within the plea agreement but reversed the probation order structure and struck the community service requirement as violating ex post facto principles.
The court affirmed the convictions and sentences as within the agreed range but reversed and remanded regarding: the probation order structure (requiring separate orders for each offense instead of a general order), the clarification of how probation periods are interrupted by incarceration, specification of a restitution amount, and striking the community service requirement as violating ex post facto principles.
[1] A defendant's failure to raise issues regarding the voluntariness of a guilty plea in a motion to withdraw the plea in the trial court precludes appellate review of those…
[2] A trial court's general order of probation for multiple offenses must be reversed and remanded for entry of separate orders of probation for each offense.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because that is so, this court is precluded from reviewing the voluntariness of his plea on direct appeal.”
Establishes that plea voluntariness issues not raised at trial cannot be reviewed on direct appeal.
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Join FLexlaw to unlock all legal intelligenceDelk pleaded guilty to aggravated battery and criminal mischief in case 85-4535, receiving 3.5 years imprisonment on the aggravated battery charge and…
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DANAHY, Chief Judge.
The appellant contends that the trial court erred in (1) accepting his guilty plea in case number 85-4535; (2) violating the terms of his plea bargain by imposing concurrent terms of imprisonment and probation; and (3) imposing community service. For the reasons stated below, we affirm in part and reverse in part.
In case number 85-4535, appellant pleaded guilty to aggravated battery and criminal mischief. The trial court sentenced him to three and one-half years’ imprisonment on the aggravated battery charge and one concurrent year of imprisonment on the criminal mischief charge. In case number 85-4530, appellant pleaded guilty to three counte of aggravated battery on three police officers, and received three concurrent terms of probation. The trial court adjudicated appellant guilty of all charges and ordered him, upon release, to make full restitution to the victims. The written judgment imposes community service, pursuant to section 27.3455, Florida Statutes (1985).
Concerning appellant’s first point, he failed to raise the issues which he raises here in a motion to withdraw his plea in the trial court. Because that is so, this court is precluded from reviewing the voluntariness of his plea on direct appeal. Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). In accordance with Counts, therefore, we affirm as to this point without prejudice to appellant raising these issues in a properly-filed motion for postconviction relief. See Fla.R.Crim.P. 3.850.
Concerning appellant’s second point, we conclude that appellant’s sentences are within the range to which he agreed at his plea hearing. We do, however, find that the trial court’s general order of probation in case number 85-4530 must be reversed and remanded for entry of separate orders of probation for each of the three offenses charged in that case. Coleman v. State, 496 So. 2d 896 (Fla. 2d DCA 1986). Upon remand, the trial court is additionally directed to clarify appellant’s sentences and probation orders to reflect that appellant’s terms of probation are interrupted for the periods of incarceration, and that he should receive credit for time served in prison against his then-remaining concurrent fifteen-year terms of probation. Cox v. State, 468 So. 2d 437 (Fla. 2d DCA 1985). Further, on remand the trial court is directed to specify a sum certain to be ordered as restitution.
Finally, we hold that the imposition of community service upon appellant pursuant to section 27.3455 violates the ex post facto clauses of the United States and Florida Constitutions. State v. Yost, 507 So. 2d 1099 (Fla.1987).
Accordingly, we affirm appellant’s convictions, but reverse the probation order, strike the imposition of community service, and remand with directions for clarifications consistent with this opinion.
LEHAN and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Jackson v. State, 615 So. 2d 850 (Fla. 2d DCA 1993)…e jail term of Count II, then the probationary period of Count I. Cf., Cox v. State, 468 So. 2d 437 (Fla. 2d DCA 1985) (under similar sentencing scheme jail time merely results in permissible interruption of probationary term); accord Delk v. State, 510 So. 2d 1209 (Fla. 2d DCA 1987). The written sentence is not helpful in clarifying the ambiguity of the oral pronouncement because it conflicts with both parties’ interpretations. A defendant’s “sentence is properly what the trial court intended it to be.” Gonz…
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Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991)…lt that appellant’s intervening criminal activity and consequent sentences, which are unchallenged here, effected the interruption of his sentence. Thus, we decline to extend the Lanier and Calhoun holdings to this case. Relying upon Delk v. State, 510 So. 2d 1209 (Fla. 2d DCA 1987) and Cox v. State, 468 So. 2d 437 (Fla. 2d DCA 1985), appellant further argues that he is entitled to credit against his Gadsden County term of probation for the time served in prison on the Leon County sentences. He asserts that s…
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Ford v. State, 528 So. 2d 538 (Fla. 5th DCA 1988)…two separate cases. A general order of probation predicated on more than one conviction for criminal activity is improper. A separate order of probation for each offense must be entered. Cervantes v. State, 442 So. 2d 176 (Fla.1983); Delk v. State, 510 So. 2d 1209 (Fla. 2d DCA 1987); Price v. State, 393 So. 2d 69 (Fla. 5th DCA 1981). We therefore reverse on this point and remand for the entry of separate probation orders. The convictions are affirmed and the sentences and orders of probation reversed and re…
Previewing 3 of 5 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)
- State v. Yost, 507 So. 2d 1099 (Fla. 1987)
- COX v. State, 468 So. 2d 437 (Fla. 2d DCA 1985)
- Coleman v. State, 496 So. 2d 896 (Fla. 2d DCA 1986)