FRED DUHART, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fred Duhart appeals from a nolo contendere plea entered pursuant to a plea agreement with the state. Duhart argues the trial judge should have offered him the opportunity to withdraw his plea after imposing sentences that departed from the state's recommendations and were more severe than anticipated.
The appellate court dismissed the appeal, holding that without an allegedly improper denial of a request to withdraw the plea filed in the trial court, there is no error upon which to predicate appellate review. The defendant must file a motion to withdraw his plea in the lower court to frame the issue properly for appellate consideration.
[1] A defendant must file a motion to withdraw a plea in the trial court before seeking appellate review of an alleged error in the plea or sentencing.
[2] A trial court is not bound by the sentencing recommendations of the state attorney in a plea agreement.
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“The sentencing judge clearly and expressly informed the defendant that he was not necessarily bound by the state attorney's recommendations and asked the defendant if he wished to withdraw his plea in light of the possibility that a greater sentence could be imposed.”
Establishes that the trial judge properly informed the defendant of the risk and gave him an opportunity to withdraw before sentencing.
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Join FLexlaw to unlock all legal intelligenceDuhart was originally charged with escape, serving as accessory after the fact to murder, and aggravated assault. Under a plea agreement, he entered a…
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COBB, Judge.
The appellant appeals from a plea of nolo contendere entered pursuant to a plea agreement reached with the state attorney. The defendant was originally charged in three counts with escape, serving as an accessory after the fact to a murder, and aggravated assault. In exchange for a plea of nolo contendere to the accessory and assault charges along with an admission that the defendant violated probation stemming from a prior offense, the state agreed to nol pros the escape charge and to recommend concurrent sentences on the accessory and assault charges and agreed to recommend that any sentence imposed be served concurrently with a three-year prison term appellant was serving in Orange County.
The sentencing judge clearly and expressly informed the defendant that he was not necessarily bound by the state attorney’s recommendations and asked the defendant if he wished to withdraw his plea in light of the possibility that a greater sentence could be imposed. The defendant indicated that he would stand by his plea and the trial court then, by way of departure, imposed two five year sentences on the accessory and assault offenses to run consecutive to each other and to the Orange County sentence. The defendant has not challenged the justifications for departure. Although initially informed by the judge that the court was not bound by the state attorney’s recommendation, Duhart argues that the judge should have asked him whether he wished to withdraw his plea after imposition of the departure sentences.
This case raises the problem presented in Stinson v. State, 448 So. 2d 1240 (Fla. 5th DCA 1984), namely, whether this court should order the trial court to allow the defendant to withdraw his plea where the defendant has not filed a motion to withdraw his plea in the trial court. This is not a case where the trial court has imposed a condition that the defendant never agreed to. See Gamble v. State, 449 So. 2d 319, 321 (Fla. 5th DCA 1984). Without an allegedly improper denial of a request to withdraw the plea, there is no error upon which to predicate appellate review. The defendant should file a motion to withdraw his plea in the lower court. See Stinson, supra; Counts v. State, 376 So. 2d 59 (Fla.2d DCA 1979). This procedure more precisely frames the issue,' arguments, and factual record and thereby facilitates appellate review. Accordingly, this appeal is DISMISSED.
DANIEL, C.J., and ORFINGER, M., Retired, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. T.G., 800 So. 2d 204 (Fla. 2001)…timely filing of a motion to withdraw plea, “there would be no record relating to the claim and there would be no ruling or decision to review in appellate court.” Rhodes v. State, 704 So. 2d 1080, 1082 (Fla. 1st DCA 1997); see also Duhart v. State, 548 So. 2d 302, 303 (Fla. 5th DCA 1989) (noting that the preservation requirement “more precisely frames the issue, arguments, and factual record and thereby facilitates appellate review”). Thus, we hold that Robinson continues to apply to juvenile proceedings and…
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Burns v. State, 884 So. 2d 1010 (Fla. 4th DCA 2004)…imely filing of a motion to withdraw plea,, “there would be no record relating to the claim and there would be no ruling or decision to review in appellate court.” Rhodes v. State, 704 So. 2d 1080, 1082 (Fla. 1st DCA 1997); see also Duhart v. State, 548 So. 2d 302, 303 (Fla. 5th DCA 1989)(noting that the preservation requirement “more precisely frames the issue, arguments, and factual record and thereby facilitates appellate review”). Id. at 210. In T. G., the supreme court held that the preservation rule i…
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Thompson v. State, 708 So. 2d 289 (Fla. 4th DCA 1998)…ary.”)(emphasis added); Davis v. State, 652 So. 2d 503 (Fla. 4th DCA 1995)(dismissing appeal for failure to file a motion to withdraw the' plea in the trial court); accord Keith v. State, 582 So. 2d 1200 [*292] (Fla. 1st DCA 1991);1 Duhart v. State, 548 So. 2d 302 (Fla. 5th DCA 1989). Where appellate review of the withdrawal of a plea requires that the issue be presented first to the trial court as a matter of appellate jurisdiction, there may not be a sound reason to treat the preservation of a post-plea sen…
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
- Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979)
- Gamble v. State, 449 So. 2d 319 (Fla. 5th DCA 1984)
- Stinson v. State, 448 So. 2d 1240 (Fla. 5th DCA 1984)