HERBERT LEE MICKENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Herbert Lee Mickens appealed his guilty plea conviction for burglary and grand theft, challenging the trial court's failure to inform him of maximum penalties and the imposition of court costs without notice. The court affirmed the conviction but reversed the cost assessment, remanding for proper proceedings on that issue.
The trial court's failure to inform Mickens of the maximum penalty was not reversible error because Rule 3.172(i) provides that failure to follow plea procedures is not void absent a showing of prejudice, which Mickens failed to demonstrate. However, the imposition of court costs without notice or an opportunity to be heard was reversible error.
[1] A defendant must show prejudice to render a plea void based on the trial court's failure to follow procedures outlined in Rule 3.172, Florida Rules of Criminal Procedure.
[2] The imposition of court costs without notice to the defendant and an opportunity to be heard constitutes reversible error.
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Join FLexlaw to unlock all legal intelligence“[F]ailure to follow any of the procedures in this Rule shall not render a plea void absent a showing of prejudice.”
Establishes that procedural defects in plea acceptance are not automatically reversible; defendant must prove prejudice.
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Join FLexlaw to unlock all legal intelligenceMickens pleaded guilty to burglary of a dwelling and grand theft. Prior to accepting the plea, the trial judge addressed matters required by Rule 3.17…
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PER CURIAM.
Herbert Lee Mickens has appealed from the judgment and sentence entered following his plea of guilty to burglary of a dwelling and grand theft. Mickens’ counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that no good faith argument can be made for reversal. We affirm in part, reverse in part and remand for further proceedings.
Prior to accepting Mickens’ plea, the trial judge personally addressed him regarding the matters set forth in Rule 3.172(c), Florida Rules of Criminal Procedure, except that he did not inform Mickens of the maximum possible penalty which could be assessed against him. See Rule 3.172(c)(i), Fla.R.Crim.P. Mickens did not object nor move to withdraw his plea based on this omission, and the trial court accepted the plea.
Mickens was thereafter sentenced within the guidelines. During the sentencing proceeding, the trial court orally imposed court costs of $250 without giving Mickens notice or the opportunity to object. Mickens appealed, and his counsel filed the aforementioned Anders brief. Although given leave by this court to file a pro se brief, Mickens did not do so. Our own review of the record has revealed two errors which merit discussion: the trial court’s failure to inform Mickens of the maximum penalty allowable for his offenses prior to accepting his plea, and the assessment of court costs without notice or the opportunity to be heard.
We find first that it was not reversible error when the trial court did not inform Mickens of the maximum penalty allowable for his offenses. Rule 3.172(i), Florida Rules of Criminal Procedure, provides that “[fjailure to follow any of the procedures in this Rule shall not render a plea void absent a showing of prejudice.” The burden is on the defendant to provide clear proof of such prejudice. Baker v. State, 344 So. 2d 597, 598 (Fla. 1st DCA 1977). No prejudice appears on the face of the record, nor has it been argued or proven in any brief filed with this court. We therefore affirm on this issue.
However, with regard to the imposition of costs without notice or the opportunity to be heard, we reverse, without prejudice to the state’s right to seek reassessment upon proper notice and an opportunity to be heard. See Smith v. State, 558 So. 2d 534 (Fla. 1st DCA 1990).
Affirmed in part, reversed in part, and remanded for further proceedings.
JOANOS, WIGGINTON and ZEHMER, JJ., concur.
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Caristi v. State, 578 So. 2d 769 (Fla. 1st DCA 1991)…the state argues that the grounds alleged in Caristi’s motion to withdraw his plea cannot form the basis of a collateral attack at this time because these grounds could have been raised at sentencing and on direct appeal, citing “Mickens v. State, [562 So. 2d 856] 15 F.L.W. D1661 (Fla. 1st DCA June 21, 1990) (issue raised sua sponte by court where Anders brief was filed); Martinez v. State, 417 So. 2d 770 (Fla. 2d DCA 1982) (issue implicitly raised by defendant); and Robinson v. State, 373 So. 2d 898, 903 (F…
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Sims v. State, 637 So. 2d 21 (Fla. 4th DCA 1994)…m sentence. Defendant failed to move to withdraw his plea on the basis of lack of volun-tariness which would have been the proper procedure. Hatcher v. State, 591 So. 2d 1134 (Fla. 4th DCA), rev. denied, 599 So. 2d 1278 (Fla.1992); Mickens v. State, 562 So. 2d 856 (Fla. 1st DCA 1990); Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). Instead, the defendant challenged directly the voluntariness of the plea. Despite the alleged error in misinforming defendant regarding his possible sentence, the record reveal…
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Rodriguez v. State, 645 So. 2d 1124 (Fla. 3d DCA 1994)…, both that he did not otherwise know of the potential penalty and, as he swore under oath, that “he would not have entered into the plea” — to an extremely lenient sentence of community control and probation — if he had known. See Mickens v. State, 562 So. 2d 856 (Fla. 1st DCA 1990); Baker v. State, 344 So. 2d 597 (Fla. 1st DCA 1977). NESBITT, J., concurs.…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Baker v. State, 344 So. 2d 597 (Fla. 1st DCA 1977)
- Buckley v. State, 558 So. 2d 534 (Fla. 1st DCA 1990)
- Smith v. State, 558 So. 2d 534 (Fla. 1st DCA 1990)