ROY LAVON HADDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the claim regarding the plea agreement is procedurally barred and must be raised via a motion to withdraw the plea or vacate sentence. The claim regarding notice of costs and fees has merit and that portion of the sentence is vacated.
Hadden pleaded guilty to burglary and a violation of probation. He appealed his sentences, arguing they exceeded the plea agreement and that he did no…
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PER CURIAM.
Hadden raises similar points in the direct appeals from a judgment and sentence for burglary entered on his guilty plea (Case No. 89-00518) and from the resulting violation of probation and sentence entered thereon (Case No. 89-00519). We, therefore, consolidate these two appeals.
The first point is that the combined sentences are in excess of the amount agreed to in a plea agreement. The agreement was for five and one-half years without bump-up for the violation of probation. The appellant actually received four years for the new burglary and three and one-half years for the violation of probation. However, the trial judge gave credit for two years previously served, making a total of five and one-half years to be served. There was no objection at sentencing, and thus no discussion as to further details of the agreement. We find this a classic case for the proposition that appellant must raise this point by a motion to withdraw the plea or a Florida Rule of Criminal Pro cedure 3.850 motion to vacate. See McGinty v. State, 463 So. 2d 495 (Fla. 2d DCA 1985).
Hadden’s second point in Case No. 89-00518, that he was not given notice of intent to impose costs and attorney’s fees, has merit. We, therefore, vacate the portion of the sentence imposing costs and attorney’s fees.
Hadden’s second point in Case No. 89-00519 is that he did not receive sufficient credit for time served. Appellant may also raise this issue in a Florida Rule of Criminal Procedure 3.850 motion to vacate.
Costs and attorney’s fees vacated, otherwise affirmed.
SCHOONOVER, A.C.J., and PATTERSON and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Reynolds v. State, 598 So. 2d 188 (Fla. 1st DCA 1992)…(Fla. 1st DCA 1986); Lepper v. State, 451 So. 2d 1020 (Fla. 1st DCA 1984). As to the length of the probationary sentence, we hold that the issue is not cognizable on direct appeal. Murray v. State, 566 So. 2d 30 (Fla. 1st DCA 1990); Hadden v. State, 555 So. 2d 430 (Fla. 2nd DCA 1990); Duhart v. State, 548 So. 2d 302 (Fla. 5th DCA 1989). Accordingly, we dismiss the appeal concerning the 5-year peri [*190] od of probation, without prejudice to appellant’s filing in the trial court either a motion to withdraw th…
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Fisher v. State, 583 So. 2d 421 (Fla. 5th DCA 1991)…ng on the only issue having merit: whether the trial court’s sentence of imprisonment followed by probation was in excess of the sentence agreed upon in the plea agreement. The procedural path chosen by Fisher is correct pursuant to Hadden v. State, 555 So. 2d 430 (Fla. 2d DCA 1990). The state agreed to nol-pros two of the three cases against Fisher in return for his entering a plea of nolo contendere to one count of trafficking in cocaine and one count of sale of cocaine in the remaining case. The inartfull…
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Smith v. State, 590 So. 2d 32 (Fla. 5th DCA 1991)…to withdraw the plea, nothing is in the record before us to indicate an attempt to withdraw the plea. The judgment and sentence are affirmed without prejudice to the filing of a motion in the trial court to withdraw the plea. See Hadden v. State, 555 So. 2d 430 (Fla. 2d DCA 1990). AFFIRMED. GOSHORN, C.J., and HARRIS, J., concur.…
Authorities Cited
- McGINTY v. State, 463 So. 2d 495 (Fla. 2d DCA 1985)