FERNANDO BUSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fernando Bush appealed his conviction and 15-year sentence for armed robbery after entering a plea of nolo contendere. The court found reversible error in imposing an upward departure sentence without contemporaneously filing written grounds and in assessing costs against an indigent defendant without notice, but affirmed the conviction itself.
The court affirmed the conviction and found no error in denying withdrawal of the plea, as Bush was clearly advised the decision was within the court's discretion and did not request withdrawal. However, the court found reversible error in imposing the departure sentence without contemporaneously filing written grounds justifying the departure, and in assessing costs against an indigent defendant without notice. The statute allowing community service in lieu of costs had been deleted prior to sentencing, making that alternative also improper.
[1] A trial court errs by imposing an upward departure sentence without contemporaneously filing written grounds justifying the departure.
[2] A defendant who enters a nolo contendere plea with the understanding that the court has sole discretion over sentencing, and who does not request to withdraw the plea, ca…
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Join FLexlaw to unlock all legal intelligence“It was made clear to him on the record that withdrawal or not would be entirely up to the court. In addition, appellant did not ask to withdraw his plea.”
Establishes that the trial court properly denied the plea withdrawal because Bush was informed of his limited options and never requested withdrawal.
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Join FLexlaw to unlock all legal intelligenceBush entered a plea of nolo contendere to armed robbery after being advised by the court and state attorney that his ultimate sentence might or might …
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DOWNEY, Judge.
Appellant seeks reversal of a judgment of conviction and sentence of fifteen years’ imprisonment for the offense of armed robbery.
A plea of nolo contendere was entered by appellant at a hearing during which the state advised the court it would be seeking a sentence that departed from the guidelines. During a colloquy at said hearing, appellant was advised by the court and the state attorney and he acknowledged that the ultimate sentence imposed may or may not be within the guidelines; it was solely up to the court to make that decision. At the sentencing hearing, the court imposed an upward departure sentence and assessed costs or community service against appellant. Three days later, the court filed its written reasons for the departure.
Appellant contends the court erred in not allowing him to withdraw his plea in view of the departure sentence; in imposing a departure sentence; and in assessing costs or community service.
We find no error committed in not allowing appellant to withdraw his plea. It was made clear to him on the record that withdrawal or not would be entirely up to the court. In addition, appellant did not ask to withdraw his plea.
It appears the trial court did commit reversible error in imposing an upward departure sentence without contemporaneously filing written grounds justifying the departure. The court filed written reasons for departure three days after sentencing. This was error in accordance with our decision in Pittman v. State, 572 So. 2d 29 (Fla. 4th DCA 1990). The sentencing herein predated the supreme court decision in Ree v. State, 565 So. 2d 1329 (Fla.1990), which is not to be applied retroactively. However, the rule applied in Ree was the law of this district at the time of the sentencing herein. See Ree v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987).
Finally, since the appellant was indigent and no notice was given, the assessment of costs was erroneous. Furthermore, the alternative of community service in lieu of costs also was improper because the statute providing therefor had been deleted prior to sentencing. See § 27.3455, Fla.Stat. (Supp.1986). Accordingly, the judgment of conviction is affirmed, but the departure sentence and the assessment of costs are reversed and the cause is remanded with directions to provide notice and a hearing if the assessment of costs is to be considered and to resentence appellant within the guidelines.
ANSTEAD and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Royster v. State, 657 So. 2d 36 (Fla. 4th DCA 1995)…has the authority to require a defendant to perform community service hours as an alternative to paying the cost of supervision. Price v. State, 620 So. 2d 1105 (Fla. 4th DCA 1993); Parks v. State, 595 So. 2d 1056 (Fla. 4th DCA 1992); Bush v. State, 579 So. 2d 362 (Fla. 4th DCA 1991). Although the provision is couched in permissive language, the only alternative to an indigent defendant, who is unable to pay the cost, would be to perform community service. Because a defendant’s due process rights would be imp…
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Phaneuf v. State, 655 So. 2d 1300 (Fla. 5th DCA 1995)…m community service in lieu of payment of costs; section 27.3455 authorizing community service in lieu of payment of costs was amended in 1986 to eliminate this alternative); Parks v. State, 595 So. 2d 1056 (Fla. 4th DCA 1992) (same); Bush v. State, 579 So. 2d 362 (Fla. 4th DCA 1991) (same); Sims v. State, 520 So. 2d 675 (Fla. 5th DCA 1988) (same); Hansley v. State, 514 So. 2d 1135 (Fla. 5th DCA 1987) (same); Rowe v. State, 558 So. 2d 174 (Fla. 5th DCA 1990) (state concedes court without authority to impose c…
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Antonik v. State, 664 So. 2d 328 (Fla. 1st DCA 1995)…to strike the provision of the probation order allowing appellant to perform community service in lieu of a portion of the court costs, as this alternative is no longer authorized. Parks v. State, 595 So. 2d 1056 (Fla. 4th DCA 1992); Bush v. State, 579 So. 2d 362 (Fla. 4th DCA 1991). In all other respects, the judgment and sentence of the trial court is affirmed. JOANOS, MICKLE and VAN NORTWICK, JJ., concur.…
Authorities Cited
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- REE v. State, 512 So. 2d 1085 (Fla. 4th DCA 1987)
- Pittman v. State, 572 So. 2d 29 (Fla. 4th DCA 1990)