JERRY LEE SETZER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1991-02-28
No. 90-494
PETERSON, J., concurs., GRIFFIN, J., dissents without opinion.
575 So. 2d 747 Florida District Court of Appeal, Fifth District (1991) Caution
Cited by 38 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Jerry Lee Setzer appeals his sentence following denial of his motion to withdraw his guilty plea. The court reversed, holding that the trial court erred by denying the motion without holding an evidentiary hearing, particularly where Setzer alleged he was unaware that pleading guilty and accepting habitual offender adjudication would result in loss of basic gain time.


Holding

The trial court erred in denying the motion to withdraw the guilty plea without holding an evidentiary hearing. Lack of knowledge regarding loss of basic gain time as a consequence of the plea constitutes good cause for withdrawal, and the trial court must hold an evidentiary hearing to determine whether Setzer was actually informed of this consequence before or at the time of pleading guilty.


Headnotes

[1] A trial court errs in denying a motion to withdraw a guilty plea without holding an evidentiary hearing when the defendant alleges good cause.

[2] A guilty plea must be entered voluntarily and with knowledge and understanding of its consequences.

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Key Quotes

“A plea of guilty should be entirely voluntary and entered with knowledge and understanding of the consequences of such a plea.”

Establishes the fundamental requirement for valid guilty pleas under Florida law

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Facts & Procedural History

Setzer was charged with false imprisonment and possession of a firearm in commission of a felony. He entered a negotiated plea agreement: guilty plea …

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Opinion of the Court
DIAMANTIS, Judge.

DIAMANTIS, Judge.

Appellant, Jerry Lee Setzer, timely appeals his sentence arguing that the trial court erred in denying appellant’s motion to withdraw his guilty plea. We conclude that the trial court erred in denying Set-zer’s motion to withdraw his guilty plea without holding an evidentiary hearing and, therefore, reverse.

Appellant was charged with committing the offenses of false imprisonment, § 787.02, Fla.Stat. (1989), and possession of a firearm in the commission of a felony, § 790.07, Fla.Stat. (1989).

The state filed notice of its intention to request the trial court to adjudicate appellant as an habitual offender, § 775.084, Fla.Stat. (Supp.1988).

Appellant entered into a negotiated plea agreement with the state in which he agreed to enter a plea of guilty to the charge of false imprisonment and in return the state agreed to nolle prosequi the firearm charge. Appellant also agreed to be adjudicated an habitual offender in exchange for a sentencing cap of eight years imprisonment. Upon entry of the plea the trial court adjudicated appellant guilty and deferred sentencing. Approximately one month later appellant filed a motion to vacate his plea alleging that at the time his plea was entered, he was unaware that he would be losing basic gain time when sentenced as an habitual offender.1 The trial court scheduled a hearing on the motion.

At the hearing, without receiving any evidence, the trial court denied the motion.

The trial court subsequently sentenced appellant in accordance with the terms of the negotiated plea agreement to a term of eight years imprisonment. The court also adjudicated him an habitual offender. A plea of guilty should be entirely voluntary and entered with knowledge and understanding of the consequences of such a plea. In this regard, Rule 3.171(c)(2) of the Florida Rules of Criminal Procedure requires defense counsel to advise the defendant of all .pertinent matters bearing on the choice of which plea to enter, the particulars attendant upon each plea, and the likely result thereof.

Thus, defense counsel has the obligation to ensure that a defendant understands the direct consequences of his plea. State v. Ginebra, 511 So. 2d 960 (Fla.1987).

Rule 3.170(f) of the Florida Rules of Criminal Procedure provides that the trial court shall, upon good cause shown by the defendant at any time before sentencing, permit a plea of guilty to be withdrawn. Good cause has been found where a defendant proves that the plea was entered without a proper understanding of its nature and consequences or was based upon a failure of communication or misunderstanding of the facts. Elias v. State, 531 So. 2d 418 (Fla. 4th DCA 1988); Richardson v. State, 432 So. 2d 750 (Fla. 2nd DCA 1983); Stapleton v. State, 239 So. 2d 140 (Fla. 1st DCA 1970).

Here, in his motion to withdraw his guilty plea, appellant alleges as good cause the fact that he did not understand that by agreeing to be adjudicated as an habitual offender he forfeited his right to receive any basic gain time. At the motion hearing appellant was not permitted to introduce any evidence or to present any argument in support of this claim. Instead, the trial court simply denied the motion. In making this determination the trial court apparently concluded that, even assuming that appellant’s claim is true, such a claim fails to constitute a valid basis for withdrawal. This conclusion is erroneous. Entry of a guilty plea without being informed or having knowledge of the fact that the plea will result in the loss of basic gain time is improper and can form the basis for withdrawal of the plea. Netherly v. State, 508 So. 2d 524 (Fla. 2d DCA 1987).

See also Rackley v. State, 571 So. 2d 533 (Fla. 1st DCA 1990).

The record is silent on whether appellant prior to, or at the time of, pleading guilty was ever informed of the fact that his plea would result in the loss of basic gain time.

The trial court’s denial of appellant’s motion to withdraw his guilty plea is reversed and this matter remanded with directions that the trial court hold an evidentiary hearing on this motion.

REVERSED AND REMANDED.

PETERSON, J., concurs.

GRIFFIN, J., dissents without opinion.

. Section 775.084(4)(e) of the Florida Statutes (Supp.1988) specifically provides that once a defendant is adjudicated an habitual offender the defendant loses the right to receive basic gain time.


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Citator

Cited By (19 total)

  • Simmons v. State, 611 So. 2d 1250 (Fla. 2d DCA 1992)
    …to educate a client about the various ramifications of gain time, as opposed to volunteering demonstrably incorrect predictions about its effect on the overall length of sentence. At first blush the decision of our sister court in Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991), which relied in part upon Netherly, appears to support Simmons’s position. Setzer moved before sentencing to withdraw his negotiated plea, stating that counsel had failed to inform him that section 775.084(4)(e) precluded the aw…
  • State v. Will, 645 So. 2d 91 (Fla. 3d DCA 1994)
    …556 (Fla. 1st DCA 1984) (forfeiture of accumulated gain time). But see Wilcox v. State, 638 So. 2d 527 (Fla. 5th DCA 1994) (post-Ashley decision; suggesting that ineligibility for basic gain time is a direct consequence of a plea); Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991) (pre-Ashley decision; same). See generally Polk v. State, 405 So. 2d 758, 761-62 (Fla. 3d DCA 1981) (enumerating collateral consequences of conviction, including loss of good time). Ashley changed the law relating to pleas by ad…
  • Caristi v. State, 578 So. 2d 769 (Fla. 1st DCA 1991)
    …t of the negotiated plea agreement. This failure on defense counsel’s part amounts to a clear instance of ineffective assistance of counsel, if shown by the facts to be true. Rackley v. State, 571 So. 2d 533 (Fla. 1st DCA 1990). See Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991). Hence, the trial court’s failure to follow the formal precepts of rules 3.170 and 3.172 when accepting Caristi’s plea and imposing sentence occurred in the context [*774] of other aggravating circumstances that necessarily fall…

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