WILLIAM KIRKMAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1990-04-10
No. 88-2967
Before SCHWARTZ, C.J., and BARKDULL and JORGENSON, JJ.
559 So. 2d 695 Florida District Court of Appeal, Third District (1990) Positive Treatment
Cited by 6 cases

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Synopsis

William Kirkman appeals his sentencing following a guilty plea to aggravated sexual battery. The Florida Third District Court of Appeal reverses and remands because the trial court imposed a sentence that violated the terms of the plea agreement without affording Kirkman the opportunity to withdraw his plea.


Holding

The trial court erred by failing to give Kirkman the opportunity to withdraw his plea. When a trial court intends to impose a sentence other than that contemplated in a plea agreement, it must explicitly afford the defendant the opportunity to withdraw the plea before imposing sentence.


Headnotes

[1] A trial court must afford a defendant the opportunity to withdraw their guilty plea when the court imposes a sentence different from that contemplated in the plea agreeme…

[2] A defendant's guilty plea entered under the mistaken assumption that they will receive a sentence making them eligible for a specific program is invalid if that sentence…

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Key Quotes

“To say in these circumstances that all which was bargained for and agreed to was fulfilled by the prosecutor's mere [recommendation] would reduce the bargain to a trap or, at best, a formality.”

Establishes that a prosecutor's recommendation alone does not satisfy a plea bargain when the court imposes a different sentence than agreed upon

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Facts & Procedural History

Kirkman was charged with aggravated sexual battery on April 22, 1987. He signed a negotiated guilty plea on November 2, 1988, under which the state ag…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

William Kirkman appeals from a sentence entered following a guilty plea. For the following reason, we reverse.

William Kirkman was charged on April 22, 1987, in Key West with aggravated sexual battery. He initially entered a plea of not guilty but on November 2,1988, signed a written, negotiated plea of guilty.

Pursuant to the terms of the plea agreement, Kirkman would be sentenced within the guidelines range of fifteen years. The agreement also provided that the prosecutor would recommend that Kirkman’s sentence run concurrently with a recent sentence he received for an offense in Plantation Key1 and that he would be declared eligible for treatment as a mentally disordered sex offender. At the sentencing hearing, both Kirk-man’s counsel and counsel for the state emphasized to the court that Kirkman had entered into the plea agreement in order to become eligible for the Mentally Disordered Sex Offender [MDSO] Program. Counsel pointed out that Kirkman would not be eligible for the program if he was sentenced to more than fifteen years.

Nevertheless, the trial court sentenced Kirkman to fifteen years in prison, the sentence to run consecutive to that imposed in the Plantation Key case.

The trial court stated, “I have a philosophical problem with concurrent sentences. It impresses me that the legislature set up separate penalties for separate crimes and separate penalties ought to be imposed.” The court did not afford Kirkman an opportunity to withdraw his plea and, in failing to do so, erred.

Kirkman entered his guilty plea on the mistaken assumption that he would receive a sentence that would render him eligible for the MDSO program. Because he did not receive the sentence for which he bargained, he should have been given the opportunity to withdraw his plea. Davis v. State, 308 So. 2d 27 (Fla.1975); Ritchie v. State, 458 So. 2d 877 (Fla. 2d DCA 1984); Richardson v. State, 432 So. 2d 750 (Fla. 2d DCA 1983).

While the plea agreement provided that the state would recommend that the sentence to be imposed run concurrently with the earlier sentence, “[t]o say in these circumstances that all which was bargained for and agreed to was fulfilled by the prosecutor’s mere [recommendation] would reduce the bargain to a trap or, at best, a formality.” Thomas v. State, 327 So. 2d 63, 64 (Fla. 1st DCA 1976).

Before a trial court can impose a sentence other than one contemplated in the plea agreement, the court must explicitly afford the defendant the opportunity to withdraw his plea. Id. Because Kirkman was not afforded that opportunity, we vacate the judgment and sentence and remand to the trial court to allow Kirkman the opportunity to withdraw his plea.

Appellant’s second point on appeal, that the sentence was impermissible because the trial court failed to use one guideline scoresheet for both the Plantation Key and the Key West offenses, is without merit. A defendant is entitled to the use of a single uniform scoresheet for those cases of his pending before the court for sentencing. Fla.R.Crim.P. 3.701(d)(1). When the defendant was sentenced in the Key West case, the Plantation Key proceeding was no longer pending. A twelve-year sentence had already been entered in the Plantation Key case. When Kirkman was sentenced in the Plantation Key case, the Key West proceeding was not yet pending because Kirkman had not yet entered a plea.

Therefore, Florida Rule of Criminal Procedure 3.701(d)(1) does not apply. See Clark v. State, 519 So. 2d 1095, 1096 (Fla. 1st DCA 1988) (where one case completed and defendant already sentenced, that case not “pending” for purposes of sentencing in companion case).

Judgment and sentence vacated; remanded with directions.

. On October 26, 1988, Kirkman entered into a guilty plea in the Plantation Key case. The same day he was sentenced to a total of twelve years in prison.


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Citator

Cited By

  • Mantle v. State, 592 So. 2d 1190 (Fla. 5th DCA 1992)
    …. See Costello v. State, 260 So. 2d 198 (Fla.1972); Brown v. State, 245 So. 2d 41 (Fla.1971). See also State v. Viele, 559 So. 2d 1304 (Fla. 4th DCA 1990) (defendant advised erroneously by his attorney that he would get gain time); Kirkman v. State, 559 So. 2d 695 (Fla. 3d DCA), rev. denied, 574 So. 2d 143 (Fla.1990) (plea bargain contemplated defendant’s eligibility for M.D.S.O. program but sentence imposed made him ineligible); Bullard v. State, 477 So. 2d 655 (Fla. 2d DCA 1985) (trial attorney erroneously…
  • Olson v. State, 687 So. 2d 71 (Fla. 3d DCA 1997)
    …however, the written plea agreement contemplates concurrent sentences. TMs case is remanded with directions to either sentence the defendant in accordance with the written agreement or allow him the opportumty to withdraw Ms plea. Kirkman v. State, 559 So. 2d 695 (Fla. 3d DCA)(sentence vacated and remanded when the trial court imposed a sentence other than that contemplated in the written plea agreement without explicitly giving the defendant the opportumty to withdraw the plea), review denied, 574 So. 2d 14…
  • Buffa v. State, 641 So. 2d 474 (Fla. 3d DCA 1994)
    …s not bound to follow the terms of the plea agreement, it must give the defendant the opportunity to withdraw his plea if it decides not to impose a sentence in accordance with the bargain. Davis v. State, 308 So. 2d 27 (Fla.1975); Kirkman v. State, 559 So. 2d 695 (Fla. 3d DCA 1990).…

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