SPUD WILSON JANNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1992-06-02
No. 91-1884
ERVIN, WIGGINTON and KAHN, JJ., concur.
599 So. 2d 731 Florida District Court of Appeal, First District (1992) Positive Treatment
Cited by 4 cases

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Synopsis

Appellant Janney pleaded no contest to drug charges based on a plea agreement requiring his state prison sentence to run concurrently with any forthcoming federal sentence. When the trial court denied his motion to withdraw the plea and sentenced him without the federal case being resolved, the appellate court held that directing concurrent sentences with a non-existent sentence violates Florida law, requiring that Janney be allowed to withdraw his plea.


Holding

The trial court erred in denying appellant's motion to withdraw his plea. Because it was impossible to fulfill the material term of the plea agreement that state time run concurrently with a non-existent federal sentence, controlling law requires that appellant be given the opportunity to withdraw his plea.


Headnotes

[1] A defendant should be allowed to withdraw a plea when the terms of the plea agreement cannot be fulfilled due to the non-existence of a sentence from another jurisdiction…

[2] A court cannot direct a sentence to run concurrently with a sentence that does not yet exist.

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Key Quotes

“Under section 921.16(2), Florida Statutes (1981), a Florida court may direct that a sentence which is imposed may be served concurrently with a sentence from another jurisdiction. The statutory language infers that there must be an existing sentence in that jurisdiction.”

Establishes the legal requirement that a concurrent sentence must be with an existing sentence, which is the foundation for the court's holding

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Facts & Procedural History

Appellant and his wife were charged with possession of cocaine and cannabis. On October 4, 1990, appellant entered a plea agreement to plead no contes…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this criminal appeal, appellant challenges the trial court’s failure to allow him to withdraw his plea and also the requirement of a term of probation which the trial court allegedly imposed after the prison sentence had begun to run.

Appellant and his wife were charged by information with one count of possession of cocaine and one count of possession of more than 20 grams of cannabis. On October 4, 1990, appellant entered an agreement whereby he would plead no contest to both charges and forfeit his car and cellular telephone to the state in exchange for the state’s agreement not to file other charges and to drop the charges pending against appellant’s wife. Section 17 of the plea agreement further provided: “I understand that the following special conditions apply to my sentence ... incarceration, if any, to run concurrent with pending federal charges.”

At a sentencing hearing seven months later, defense counsel moved for a continuance on the ground that the plea agreement was premised on appellant’s state time running concurrently with whatever sentence he would receive in federal court, and the federal charges had not yet been disposed of. The trial court noted that the case had been continued several times because of the delay in the federal case and refused to further continue the case. Appellant moved to withdraw his plea on the ground that the plea was entered on the understanding that his state time would run concurrently with any federal sentence. The trial court denied the motion to withdraw the plea and sentenced appellant.

The trial court erred in denying appellant’s request to withdraw his plea. In Richardson v. State, 432 So. 2d 750 (Fla. 2d DCA 1983), and Goodwin v. State, 477 So. 2d 1089 (Fla. 4th DCA 1985), our sister courts have held that it is improper to direct a sentence to run concurrently with another sentence not then in existence and allowed appellants to withdraw their pleas. In Richardson, the court stated:

Under section 921.16(2), Florida Statutes (1981), a Florida court may direct that a sentence which is imposed may be served concurrently with a sentence from another jurisdiction. The statutory language infers that there must be an existing sentence in that jurisdiction.

Id. at 751.

In the case at bar, as in the Richardson and Goodwin cases, there was no existing sentence at the time the plea bargain was entered. Since appellant had still not been sentenced on his federal charges after seven months, it was literally impossible to adhere to the terms of the plea agreement. In the face of the trial judge’s refusal to grant a continuance of the sentencing, the only alternative was to allow withdrawal of the plea and abrogation of the plea agreement in its entirety. Appellant could not at the time of sentencing receive the sentence for which he originally bargained. Controlling law requires that he be given the opportunity to withdraw his plea. Richardson; Goodwin. Because we hold that appellant must be given the opportunity to withdraw his plea, we do not reach the probation issue.

REVERSED and REMANDED.

ERVIN, WIGGINTON and KAHN, JJ., concur.


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Citator

Cited By

  • Donnie Adkison v. State, 829 So. 2d 988 (Fla. 1st DCA 2002)
    …ummary denial of Appellant’s claim, and remand with instructions to the trial court to either attach record excerpts that conclusively [*989] establish that Appellant is not entitled to relief, or to hold an evidentiary hearing. See Janney v. State, 599 So. 2d 731, 731 (Fla. 1st DCA 1992). REVERSED AND REMANDED WITH INSTRUCTIONS. ERVIN, BOOTH and BROWNING, JJ., concur.…
  • DOE v. State, 834 So. 2d 420 (Fla. 2d DCA 2003)
    …entence, if it is indeed imposed, will run concurrently with his Florida sentence; thus, the trial court cannot ensure that the terms of Bailey’s plea bargain are met. See Richardson v. State, 432 So. 2d 750, 751 (Fla. 2d DCA 1983); Janney v. State, 599 So. 2d 731, 731 (Fla. 1st DCA 1992). Accordingly, we reverse and remand with directions to permit Bailey to withdraw his plea of no contest and enter a plea of not guilty, if he desires to do so after he has been advised of the proper alternatives. Reversed…

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