GUILLERMO TRUJILLO-PENTATE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Guillermo Trujillo-Pentate appealed his nolo contendere plea and habitual felony offender sentence for drug and firearms offenses. Although the state moved to dismiss based on the no-appeal rule for nolo contendere pleas, the court found it had jurisdiction over the sentencing issue and remanded for resentencing due to the trial court's failure to make required statutory findings about whether predicate convictions had been pardoned or set aside.
The court denied the state's motion to dismiss and retained jurisdiction over the sentencing issue, which is appealable even after a nolo contendere plea. The court reversed the sentencing and remanded for resentencing because the trial court failed to make the required statutory findings regarding whether predicate convictions had been pardoned or set aside.
[1] A defendant who pleads nolo contendere without an express reservation of the right to appeal generally forfeits the right to a direct appeal.
[2] Appellate review of a defendant's competency to stand trial is not precluded by a subsequent nolo contendere plea if the competency issue affects the voluntary and intell…
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Join FLexlaw to unlock all legal intelligence“an appeal from a plea should never be a substitute for a motion to withdraw the plea”
Establishes that competency challenges cannot bypass the plea withdrawal procedure on direct appeal
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Join FLexlaw to unlock all legal intelligenceAppellant entered a plea of nolo contendere to sale and possession of cocaine, carrying a firearm in commission of a felony, and escape after the tria…
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PER CURIAM.
Appellant, Guillermo Trujillo-Pentate, appeals the judgment and habitual felony offender sentence imposed pursuant to his plea of nolo contendere to the offenses of sale and possession of cocaine, carrying a firearm in the commission of a felony, and escape. The state moved to dismiss the appeal, relying on Section 924.06(3), Florida Statutes (defendant who pleads nolo con-tendere with no express reservation of the right to appeal shall have no right to a direct appeal). We deny the state’s motion to dismiss, affirm the judgment, but remand for resentencing.
In the proceeding below the trial court ruled that appellant was competent to stand trial. It was only then that appellant entered his plea of nolo contendere. On appeal, appellant first raised two issues relating to appellant’s competency to proceed to trial. Appellant later raised a supplemental issue with respect to sentencing.
With respect to the competency issues raised, the state moved to dismiss in light of appellant’s nolo contendere plea. Appellant argues that the competency issues raised present questions as to the voluntary and intelligent character of the plea, cognizable on appeal pursuant to Robinson v. State, 373 So. 2d 898 (Fla.1979). Even assuming that the competency issues raised cast doubt upon the voluntary and intelligent character of appellant’s plea, Robinson clearly states that an appeal from a plea should never be a substitute for a motion to withdraw the plea. Id. at 902. Thus, a challenge to the voluntary and intelligent character of the plea would be reviewable on direct appeal if the trial court had been presented with that question and rendered a ruling adverse to the defendant. Id.
Though appellant may not challenge the voluntary and intelligent nature of his plea on appeal, we nonetheless deny the state’s motion to dismiss as we have jurisdiction of the case in order to consider the sentencing issue raised, which is appealable under Robinson.
See Pyle v. State, 596 So. 2d 744 (Fla. 1st DCA 1992).
Appellant argues that the trial court erred reversibly in failing to make the required statutory findings that the predicate convictions supporting habitual felony offender sentencing had not been pardoned or set aside. This court has recently ruled favorably upon appellant’s argument. Jones v. State, 606 So. 2d 709 (Fla. 1st DCA 1992) (en banc). We therefore remand for resentencing. On remand, the trial court may impose the same sentence originally imposed if such can be done in accordance with Jones.
AFFIRMED in part, REVERSED in part and REMANDED for resentencing.
MINER, ALLEN and KAHN, JJ., concur. ON MOTION TO CERTIFY A QUESTION OF GREAT PUBLIC IMPORTANCE
We grant appellee’s motion to certify a question of great public importance. As was done in Jones v. State, 606 So. 2d 709 (Fla. 1st DCA 1992), we certify the following question to the Florida Supreme Court as one of great public importance:
Does the holding in Eutsey v. State, 383 So. 2d 219 (Fla.1980), that the state has no burden of proof as to whether the convictions necessary for habitual felony offender sentencing have been pardoned or set aside, in that they are “affirmative defenses available to [a defendant],” Eutsey at 226, relieve the trial court of its statutory obligation to make findings regarding those factors, if the defendant does not affirmatively raise, as a defense, that the qualifying convictions provided by the state have been pardoned or set aside?
MINER, ALLEN and KAHN, JJ., concur. . This disposition is without prejudice to appellant’s entitlement to seek appropriate postcon-viction relief in the trial court.
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Citator
Cited By
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Burns v. State, 884 So. 2d 1010 (Fla. 4th DCA 2004)…efendant’s competency at the time of entering a guilty or no contest plea is an issue bearing upon the voluntary and intelligent character of the defendant’s plea. See Trawick v. State, 473 So. 2d 1235 (Fla. [*1013] 1985); Trujillo-Pentate v. State, 609 So. 2d 72, 73 (Fla. 1st DCA 1992), quashed on other grounds, 620 So. 2d 1231 (Fla.1993). An issue relating to the voluntary and intelligent nature of the plea falls within the limited class of issues which a defendant may raise on appeal from a guilty or no c…
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Heatley v. State, 636 So. 2d 153 (Fla. 1st DCA 1994)…and standards pertaining to a motion to withdraw a plea. If the action of the trial court on such a motion is adverse to the defendant, it would be subject to review on direct appeal. Robinson, 373 So. 2d at 902. See also Trujillo-Pentate v. State, 609 So. 2d 72 (Fla. 1st DCA 1992), reversed on other grounds 620 So. 2d 1231 (Fla.1993); Isley v. State, 565 So. 2d 389 (Fla. 5th DCA 1990). In the present posture of this case, appellant’s reliance upon Ashley is misplaced. In that case, it was clear that the d…
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Fuller v. State, 748 So. 2d 292 (Fla. 4th DCA 1999)…mining a defendant competent does not preclude an immediate trial; trial proceeds. Therefore the issue is not dispositive. The determination of dispositiveness is made without regard to the potential outcome on appeal. In Trujillo-Pentate v. State, 609 So. 2d 72 (Fla. 1st DCA 1992), quashed on other grounds, 620 So. 2d 1231 (Fla.1993), the defendant was found competent to proceed to trial, pled nolo contendere, and on appeal raised two issues relating to his competency and one issue relating to his sentence…
Previewing 3 of 8 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)
- Fredford James Eutsey v. State, 383 So. 2d 219 (Fla. 1980)
- William v. Jones, 606 So. 2d 709 (Fla. 1st DCA 1992)
- Pyle v. State, 596 So. 2d 744 (Fla. 1st DCA 1992)