ERIC PAYNE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1993-09-29
No. 92-2109
GUNTHER, POLEN and KLEIN, JJ., concur.
624 So. 2d 815 Florida District Court of Appeal, Fourth District (1993) Positive Treatment
Cited by 12 cases

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Holding

A trial court must allow a defendant to withdraw their plea if the court cannot impose a sentence consistent with the plea agreement, especially when a furlough, not part of the agreement, leads to an enhanced sentence.


Headnotes

[1] When a court determines prior to imposing sentence that it cannot impose sentence in accord with a plea agreement, it must give the defendant an opportunity to withdraw h…

[2] If an enhanced sentence for failure to appear is not part of a negotiated plea agreement, a court must allow the defendant an opportunity to withdraw the plea before impo…

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Facts & Procedural History

Appellant pled guilty under a negotiated plea agreement. He was granted a furlough, which was explicitly not part of the agreement, with a warning of …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Erie Payne appeals from a judgment and sentence for attempted armed robbery, armed robbery with a firearm, and two charges of felony petit theft, as he was not given the opportunity to withdraw his plea, before being sentenced in excess of a negotiated plea bargain. The greater sentence was imposed because of appellant’s violation of a furlough agreement that was not part of the plea bargain. We reverse.

Pursuant to a plea agreement appellant pled guilty to the above named charges. As per the agreement, the state was to nolle pros the additional pending charges of grand theft and armed burglary of an occupied conveyance. The sentence was to consist of a classification as a habitual violent felony offender and confinement of nineteen years concurrently on the armed robbery charges, with varying minimum mandatory sentences per charge, and lesser terms to run concurrently on the remaining charges.

After the trial court discussed this negotiated plea with the appellant, but before he accepted, defense counsel told the court that appellant would be requesting a furlough, which would not be part of the plea agreement. The court agreed to a furlough, and then conducted the plea colloquy. Prior to accepting the plea, the trial court advised appellant that the furlough was not part of the plea agreement, but if he failed to appear after the furlough, he would not receive the benefit of the plea agreement and would receive an enhanced sentence (life).

Appellant requested various extensions to the furlough after which he failed to appear, and a capias was issued. As a result of appellant’s failure to appear, the trial court decided that it would not impose sentence in accord with the negotiated plea bargain. Thus, after denying appellant’s oral and written motions to withdraw his plea, the court imposed an enhanced sentence.

Appellant argues that the trial court erred when it did not give him the opportunity to withdraw his plea before imposing sentence in excess of the negotiated plea bargain. Under the unique facts of this case, we agree.

When a court determines prior to imposing sentence, that it cannot impose sentence in accord with the plea agreement, it must give the defendant an opportunity to withdraw his plea. Collier v. State, 590 So. 2d 456, 457 (Fla. 1st DCA 1991). Thus, in those cases where a defendant requests a furlough it must be determined whether such furlough is part of the plea agreement. Where a furlough and enhanced sentence for failure to appear are part of the negotiated plea, a court is justified in imposing the enhanced sentence after the defendant fails to appear in court, without giving him the opportunity to withdraw his plea. Quarterman v. State, 527 So. 2d 1380 (Fla.1980); Fambro v. State, 581 So. 2d 199 (Fla. 4th DCA), rev. denied, 591 So. 2d 181 (Fla.1991). In contrast, when an enhanced sentence for failure to appear in court at a later time is not part of the plea agreement, a court must allow the defendant an opportunity to withdraw the plea, before it imposes the more severe sentence. Edwards v. State, 576 So .2d 441, 442 (Fla. 4th DCA 1991).

At bar, before imposing the enhanced sentence, the lower court acknowledged that the furlough was not part of the negotiated plea agreement. Moreover, at the time the plea was originally taken, the lower court never expressed that its grant of a furlough was part of the negotiated plea in exchange for which the appellant must agree to a stiffer sentence. Rather, both appellant’s attorney and the court affirmatively stated that the plea bargain was not conditioned on a furlough. Defense counsel expressly informed the court, “a furlough is not part of this plea.” This was further acknowledged by the trial court, specifically stating:

Now because its (sic) not part of the plea agreement I don’t want to sit here and figure it up right now as to if Mr. Payne did not show up what would happen....

Thus, as the circuit court originally established that the furlough was not part of the negotiated plea agreement, we reverse and remand to the trial court with directions to give the appellant the opportunity to withdraw his plea should he so desire.

Appellant also argues various other points on appeal, only one of which has merit. Appellant argues and the state concedes that the sentencing forms must be corrected to conform to the trial court’s oral pronouncements as to the sentences for the third degree felonies. See McBee v. State, 581 So. 2d 1009, 1110 (Fla. 4th DCA 1991). Thus, we would also remand to the trial court for the purpose of making that correction.

GUNTHER, POLEN and KLEIN, JJ., concur.


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Citator

Cited By

  • Buell v. State, 704 So. 2d 552 (Fla. 4th DCA 1997)
    …ew arrest created an open plea. We also find no error in the trial court’s refusal to allow appellant to withdraw his plea, since the potential of sentencing enhancement for the failure to appear was part of the negotiated plea. See Payne v. State, 624 So. 2d 815, 816 (Fla. 4th DCA 1993). Although Florida Rule of Criminal Procedure 3.172 requires a trial judge to “verbally engage a defendant who seeks to enter a plea,” Lu v. State, 683 So. 2d 1110, 1111 (Fla. 4th DCA 1996), nothing in the rule mandates that…
  • Smith v. State, 988 So. 2d 1258 (Fla. 5th DCA 2008)
    …s the majority correctly observes, a trial court may not unilaterally impose additional conditions on a defendant after it has formally accepted the plea agreement without the acquiescence of the defendant or the defendant’s counsel. Payne v. State, 624 So. 2d 815, 816 (Fla. 4th DCA 1993); Pumphrey v. State, 502 So. 2d 982, [*1263] 983-84 (Fia. 1st DCA 1987). However, additional conditions may be imposed as a valid modification of the plea agreement if ratified by the defendant’s clear and unequivocal underst…
    1 / 2
  • Russell v. State, 645 So. 2d 1087 (Fla. 4th DCA 1994)
    …ad been made part of the negotiated agreement. We agree. A trial court may not unilaterally impose additional conditions after it has formally accepted the plea agreement without the acquiescence of defendant or defendant’s counsel. Payne v. State, 624 So. 2d 815 (Fla. 4th DCA 1993); Pumphrey v. State, 502 So. 2d 982 (Fla. 1st DCA 1987). Additional conditions may be imposed as a valid modification of the plea agreement, however, only if ratified by defendant’s clear and unequivocal understanding and acceptan…

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