GREGORY ZAETLER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gregory Zaetler appeals the denial of his post-conviction relief motion, arguing he should not have been sentenced under Count IV (firearm possession) because Counts I-III were enhanced based on that same firearm. The court affirmed the denial, finding that Zaetler's voluntary nolo contendere plea and affirmative agreement to the sentence waived any double jeopardy objection.
The court held that Zaetler's voluntary plea and explicit agreement to the sentence waived any double jeopardy objection. The court also rejected claims regarding victim injury scoring, prior record scoring errors, and other sentencing errors, finding them either meritless or harmless.
[1] A voluntary plea of nolo contendere coupled with an agreement to the imposed sentences waives any double jeopardy objection to the convictions and sentences.
[2] A claim of ineffective assistance of counsel regarding the entry of a plea is not properly before an appellate court if it was not first raised in the trial court via a m…
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Join FLexlaw to unlock all legal intelligence“The voluntary plea plus agreement on sentence waived any double jeopardy objection as to the convictions and sentences.”
Establishes the court's primary holding that Zaetler's knowing and voluntary plea agreement eliminated his ability to challenge double jeopardy issues on appeal.
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Join FLexlaw to unlock all legal intelligenceZaetler was charged with multiple counts including possession of a firearm during the commission of felonies. He entered a nolo contendere plea to all…
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PER CURIAM.
Gregory Zaetler appeals the denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Zaetler argues that he should not have been sentenced under Count IV of the indictment, which charged him with possession of a firearm during the commission of the felonies with which he was charged in Counts I, II, and III. That is so, Zaetler contends, because Counts I, II, and III were enhanced on account of the possession of the firearm during commission of those felonies. See Cleveland v. State, 587 So. 2d 1145, 1146 (Fla.1991).
In the present case a review of the plea colloquy reveals that Zaetler pled nolo contendere to all counts, and that he affirmatively agreed to the sentences imposed: thirty years on Count I and time served on the remaining counts. The voluntary plea plus agreement on sentence waived any double jeopardy objection as to the convictions and sentences. Novaton v. State, 610 So. 2d 726 (Fla. 3d DCA 1992) and cases cited therein; see also State v. Johnson, 483 So. 2d 420, 423 (Fla.1986) (citing United States v. Pratt, 657 F. 2d 218 (8th Cir.1981); United States v. Herzog, 644 F. 2d 713 (8th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981)).
The trial court correctly denied the other claims in the Rule 3.850 motion as well. There is no merit to the claim of double jeopardy with respect to Counts II and III of the indictment which were aggravated assaults on separate victims from the victim in Count I. Victim injury was correctly scored. Fennell v. State, 544 So. 2d 1017 (Fla.1989). Count I was correctly scored. See §§ 775.087, 782.04(2), Fla. Stat. (1987).
There was no objection below to the scoring of defendant’s prior record and the scoresheet was signed by defense counsel. Defendant’s Rule 3.850 motion was not accompanied by certified copies of his prior convictions, but only consists of defendant’s bare assertions of scoring error. Assuming arguendo, however, that the pri-or record segment should have been scored as defendant now contends, defendant specifically bargained for a thirty-year sentence on Count I and time served on all other counts; the thirty-year sentence would be well within the permitted range even if prior record were rescored in accordance with defendant’s assertions in the 3.850 motion. If there was scoring error, it was harmless.
During the pendency of this appeal, Zaetler raised an additional claim that he had ineffective assistance of counsel with respect to entry of his plea. Because the issue was not brought before the trial court in the Rule 3.850 motion, it is not properly before this court on appeal. We therefore do not consider it and express no view on the merits thereof.
Affirmed.
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Conrey v. State, 624 So. 2d 793 (Fla. 5th DCA 1993)…guilty plea. Smith v. State, 358 So. 2d 1164, 1165 (Fla. 2d DCA 1978). . We have reviewed and rejected Conrey’s double jeopardy contention because we conclude that this issue was voluntarily waived by entry of the guilty plea. See Zaetler v. State, 616 So. 2d 461 (Fla. 3d DCA 1993); Novation v. State, 610 So. 2d 726 (Fla. 3d DCA 1992).…
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Carmona v. State, 763 So. 2d 566 (Fla. 3d DCA 2000)…voluntary plea that falls within the pre-1995 guidelines, and, therefore, his motion is denied. Ivy v. State, 754 So. 2d 776 (4th DCA 2000); Hill v. State, 730 So. 2d 322 (1st DCA 1999); Poe v. State, 689 So. 2d 333 (5th DCA 1997); Zaetler v. State, 616 So. 2d 461 (3d DCA 1993). The order is affirmed on the authority of the cases cited below and Dunenas v. Moore, 762 So. 2d 1007 (Fla. 3d DCA 2000).…
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Powell v. State, 657 So. 2d 37 (Fla. 5th DCA 1995)…s received the benefit of their bargains. Accordingly, we affirm. Accord Melvin v. State, 645 So. 2d 448 (Fla.1994); Bryant v. State, 644 So. 2d 513 (Fla. 5th DCA 1994), rev. denied, No. 84,920, 654 So. 2d 130 (Fla. 1995). See also Zaetler v. State, 616 So. 2d 461 (Fla. 3d DCA), rev. denied, 626 So. 2d 210 (Fla.1993) (voluntary guilty plea plus agreement on sentence waived any double jeopardy objection as to convictions and sentences). AFFIRMED. THOMPSON, J., concurs. GRIFFIN, J., concurs specially, with o…
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
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- Klauber v. Attorney Grievance Comm'n of Md., 451 U.S. 1018 (U.S. 1981)
- Johnson v. United States, 451 U.S. 1018 (U.S. 1981)
- United States v. Herzog, 644 F.2d 713 (8th Cir. 1981)
- United States v. Pratt, 657 F.2d 218 (8th Cir. 1981)
- Novaton v. State, 610 So. 2d 726 (Fla. 3d DCA 1992)
- Fennell v. State, 544 So. 2d 1017 (Fla. 1989)