CHARLES WALKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Walker pled guilty to burglary and grand theft charges under an agreed 30-month sentence cap. After learning Walker used an alias with a prior record affecting his sentencing guidelines, the trial court withdrew acceptance of the plea and offered new terms. Walker then negotiated a different guilty plea with a 15-year concurrent sentence, which exceeded the original agreement. The appellate court dismissed the appeal without prejudice because Walker failed to challenge the voluntariness of his second plea through a motion to withdraw.
The appellate court lacked jurisdiction to consider Walker's double jeopardy and coercion claims because Walker's entry of the second guilty plea deprived the court of appellate jurisdiction. A defendant cannot appeal a guilty plea, and appellate jurisdiction exists only when the defendant moves to withdraw the second plea in the trial court, giving the trial court an opportunity to rule on involuntariness allegations. Walker failed to make such a motion.
[1] A defendant cannot appeal a guilty plea.
[2] A defendant must move to withdraw a guilty plea in the trial court to preserve for appellate review the allegation that the plea was involuntary.
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Join FLexlaw to unlock all legal intelligence“A defendant cannot appeal a guilty plea. Fla.R.App.P. 9.140(b)(1).”
Establishes the foundational rule that renders Walker's appeal jurisdictionally barred because he entered a second guilty plea.
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Join FLexlaw to unlock all legal intelligenceWalker pled guilty to three counts of burglary of a dwelling and two counts of grand theft. The initial plea agreement capped his sentence at 30 month…
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PER CURIAM.
Appellant pled guilty to three counts of burglary of a dwelling and two counts of grand theft arising from the burglaries. The plea agreement called for a sentence of no more than thirty months.
When appellant appeared to enter the plea, the court asked him, “Are you Charles Walker?” He answered, “Yes.” The court did not ask whether appellant had any aliases or any other prior record. After determining that there was a factual basis for the plea, the trial court accepted it unconditionally. The court then postponed sentencing pending completion of a presen-tence investigation report.
When the court reconvened for sentencing, the court learned that appellant had an alias under which he had a prior record; if included in the scoresheet calculation, these other convictions would have changed his point tally and placement. The court considered that appellant had made a material misrepresentation to the court, and announced that it did not intend to be bound by its earlier acceptance of the plea.
The court offered appellant the choice of entering an open plea of guilty with a corresponding guidelines sentence; accepting the state’s new offer of up to twenty-two years on a guilty plea; or withdrawing the plea altogether. Appellant’s counsel advised him to reaffirm his original plea. The court recessed for appellant to consider the offer. Three weeks later, appellant appeared and withdrew his original plea, again against the advice of counsel. The court docketed the case for trial.
Shortly thereafter, appellant appeared before the court and entered a newly negotiated guilty plea which required him to serve concurrently fifteen years each on the three counts of burglary and five years each on the two counts of grand theft. The court accepted the plea and entered the sentence.
Appellant alleges that the second plea was not voluntary because the court unjustly coerced him to withdraw his first plea; the court, therefore, violated the proscriptions on double jeopardy by reinstating the original charges and giving a sentence exceeding that which it already had accepted.
The appellant’s entry of the intervening guilty plea left this court without jurisdiction to entertain his appeal. A defendant cannot appeal a guilty plea. Fla.R.App.P. 9.140(b)(1). For this court to have appel late jurisdiction, appellant had to move to withdraw the second plea so the trial court had the opportunity to rule on his allegation that the second plea was involuntary. Robinson v. State, 373 So. 2d 898, 902 (Fla.1979); Newbold v. State, 521 So. 2d 279 (Fla. 2d DCA 1988). He did not do so.
Accordingly, we dismiss this appeal, but we do so without prejudice to appellant’s right to seek collateral relief. See Newbold, 521 So. 2d at 280.
ANSTEAD and WARNER, JJ., concur. GLICKSTEIN, J., dissents with opinion.
GLICKSTEIN, Judge,
dissenting.
I would affirm. Appellant knowingly pled guilty a second time. He alleges that the sentence entered was illegal because of the involuntary character of the plea and the resulting double jeopardy violation. See Fla.R.App.P. 9.140(b)(1)(D) (a defendant can appeal an illegal sentence). He has not demonstrated that his plea was involuntary, and therefore he has not shown that his sentence was illegal. Rather than dismissing, I would conclude on the merits that there was no illegality.
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State v. T.G., 800 So. 2d 204 (Fla. 2001)…ng that statutes and rules addressing appeals from guilty or nolo pleas in criminal cases did not apply to similar appeals in juvenile delinquency cases. The court further noted that Robinson v. State, 373 So. 2d 898 (Fla.1979), and Walker v. State, 565 So. 2d 873 (Fla. 4th DCA 1990), did not apply to juvenile appeals. The State sought review, and this Court subsequently accepted jurisdiction based on conflict with J.S., and J.L., which held that a juvenile’s failure to preserve error with a motion to withdra…
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Thompson v. State, 708 So. 2d 289 (Fla. 4th DCA 1998)…la. R.App. P. 9.140(b)(2) (B )(iii); Robinson v. State, 373 So. 2d 898, 902 (Fla.1979). This court has held that the filing of a motion to withdraw a plea is a jurisdictional prerequisite to appealing the plea’s involuntariness. See Walker v. State, 565 So. 2d 873, 873-74 (Fla. 4th DGA 199(f)(“For this court to have appellate jurisdiction, appellant had to move to withdraw [his] plea so the trial court had the opportunity to rule on his allegation that the ... plea was involuntary.”)(emphasis added); Davis v.…
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T.G. v. State, 741 So. 2d 517 (Fla. 5th DCA 1999)…peals in juvenile delinquency cases are governed by the original Chapter 39 of the Florida Statutes, now transferred to Chapter 985, and by Florida Rules of Appellate Procedure 9.145. Robinson v. State, 373 So. 2d 898 (Fla.1979) and Walker v. State, 565 So. 2d 873 (Fla. 4th DCA 1990), also cited by the state, are criminal cases and do not apply to juvenile appeals. REHEARING DENIED. W. SHARP, and PETERSON, JJ„ concur. . Preserving an issue for appeal confers subject matter jurisdiction on the appellate cou…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Newbold v. State, 521 So. 2d 279 (Fla. 2d DCA 1988)