J.D. SYPLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence exceeding the maximum penalty stated in the plea form, even when the defendant qualifies as a habitual felony offender, is improper without proper advisement.
Syples pled guilty to lesser included offenses and was informed the maximum penalty was five years. He later qualified as a habitual felony offender a…
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PER CURIAM.
J.D. Syples challenges the judgment and sentence imposed by the trial court which exceeds the maximum penalty indicated in the plea form he executed. We reverse and remand for further proceedings.
A plea hearing was conducted in which Syples pled guilty to lesser included offenses. He was informed by the court that the maximum penalty he could receive was five years and a $5,000.00 fine. A plea form was also executed which states that the maximum penalty for the charge of attempted lewd and lascivious act is five years. At the time the plea was taken, the court advised Syples that he might be ha-bitualized, but did not explain that he was in jeopardy of a sentence in excess of five years.
Subsequently, it was determined that Sy-ples qualified for classification as a habitual felony offender and he was sentenced to ten years imprisonment on each of the two counts to run consecutively. The trial court’s action was improper. See Ashley v. State, 614 So. 2d 486 (Fla.1993).
Reversed and remanded with directions to the trial court to enter a maximum sentence of five years in accordance with the terms of the plea form, or that Syples be allowed to withdraw his plea of guilty.
SCHOONOVER, A.C.J., and HALL and BLUE, JJ., concur.
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Wilson v. State, 645 So. 2d 1042 (Fla. 4th DCA 1994)…remanded the case to permit the defendant to withdraw his plea and enter a new plea or proceed to trial. In effect, this solution gave the trial court a second opportunity to habitualize correctly by complying with Ashley. See also Syples v. State, 621 So. 2d 574 (Fla. 2d DCA 1993) (where defendant was not informed that ha-bitualized sentence could exceed maximum set out in plea form, reverse and remand with instructions to enter maximum sentence set out in plea form or allow defendant to withdraw guilty ple…
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- Ashley v. State, 614 So. 2d 486 (Fla. 1993)