ROBERT HEATLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Heatley appeals his habitual felony offender sentence following a guilty plea to burglary, arguing that the trial court failed to fully inform him of all consequences of habitualization under Ashley v. State. The appellate court affirms, holding that Heatley's failure to pursue a motion to withdraw the plea precluded appellate review and that Ashley's requirements were satisfied because he received statutory notice of intent to habitualize prior to entering his plea.
The sentence is affirmed. The court holds that Heatley's failure to file a motion to withdraw his plea precluded appellate review of issues concerning the voluntary and intelligent character of the plea. Additionally, Ashley v. State's requirements were satisfied because Heatley received statutory notice of intent to habitualize prior to entering his plea, distinguishing this case from Ashley where no such prior notice was given.
[1] A defendant appealing a guilty plea must first present issues concerning the plea's voluntary or intelligent character to the trial court via a motion to withdraw the ple…
[2] A defendant's failure to file a motion to withdraw a plea precludes appellate review of issues concerning the plea's voluntary or intelligent character.
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Join FLexlaw to unlock all legal intelligence“It is well established that an appeal from a guilty plea should never be a substitute for a motion to withdraw the plea.”
Establishes the procedural requirement that issues concerning voluntariness or intelligence of a plea must be raised via motion to withdraw, not direct appeal.
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Join FLexlaw to unlock all legal intelligenceIn March 1991, the state served notice of intent to classify Heatley as a habitual felony offender and informed him of the maximum sentence and inelig…
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SHIVERS, Senior Judge.
Robert Heatley has appealed from an habitual felony offender sentence imposed following his plea of guilty to burglary of a structure. We affirm.
In March 1991, the state served its “notice of intent to classify defendant as a habitual felony offender” as to the foregoing offense, which notice informed Heatley of the maximum habitual felony offender sentence, and that he would be ineligible for gain time. Heatley later signed a written plea agreement providing for a guilty plea in return for 12-30 months incarceration or community control, with the proviso that “[i]f [he] fails to ... return for sentencing, plea stands and defendant may be sentenced to maximum allowed — 10 year [sic] as habitual offender” (emphasis supplied).
At the June 1991 plea hearing, prior to accepting the plea, the trial court personally confirmed Heatley’s awareness of the maximum habitual offender term and that, as an habitual offender, he would receive no gain time. Heatley failed to appear for his July 1991 sentencing, and on August 28, 1992 was sentenced to four years as an habitual felony offender. Heatley’s sole argument herein is that this sentence must be reversed based on Ashley v. State, 614 So. 2d 486 (Fla.1993) (a defendant must be given written notice of the intent to habitualize prior to the acceptance of his plea). Heatley acknowledges that he received the requisite prior notice. However, he cites additional language in that case holding that, prior to acceptance of a plea, the trial court must “confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization.” Ashley, 614 So. 2d at 490. Heatley notes that the court did not mention his ineligibility for “control release,” pursuant to section 947.146, Florida Statutes (1989).1
It is well established that an appeal from a guilty plea should never be a substitute for a motion to withdraw the plea. Robinson v. State, 373 So. 2d 898, 902 (Fla.1979). If the record raises issues concerning the voluntary or intelligent character of the plea, that issue should first be presented to the trial court in accordance with the law 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 defendant entered his guilty plea prior to being informed that he would be treated as an habitual offender, thus obviating any requirement that he make a further showing that he knew the consequences of habitualization. The relief granted in Ashley (a guidelines or departure sentence) was appropriate in that case because it would have been the only sentence available to the trial court at the time it accepted Ashley’s plea.
Because Heatley did not follow the requirements of Robinson, the court need not at this time reach the question of the extent to which the Ashley decision requires a trial judge to inform the defendant of the “reasonable consequences of habitualization” in a case in which the defendant receives statutory notice of intent to habitualize prior to entering a plea. Ashley, 614 So. 2d at 490. Ashley turned primarily on the prosecution’s failure to give notice of intent to habitualize before the plea. It therefore remains for the supreme court to clarify the application of that case in other factual contexts.
We affirm the sentence imposed herein.
BOOTH and KAHN, JJ., concur. . Section 775.084(4)(e), Florida Statutes (1989), in effect at the time Heatley committed his offense, provides that "[t]he provisions of chapter 947 shall not be applied [to defendants sentenced under this section].”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997)…t the defendant was not informed of the consequences of habitualization cannot be presented on direct appeal unless the defendant has preserved the issue for review by filing a timely motion to withdraw the plea in the trial court. Heatley v. State, 636 So. 2d 153 (Fla. 1st DCA 1994); Perkins v. State, 647 So. 2d 202 (Fla. 1st DCA 1994). The defendant suggests that we reconsider this line of cases in light of the supreme court’s decision in State v. Wilson, 658 So. 2d 521 (Fla.1995), but that decision does n…
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Robinson v. State, 689 So. 2d 1147 (Fla. 4th DCA 1997)…l his original sentence, and did not move to withdraw his original plea. See Williams v. State, 691 So. 2d 484 (Fla. 4th DCA 1997); Robinson v. State, 373 So. 2d 898 (Fla.1979); Surinach v. State, 676 So. 2d 997 (Fla. 3d DCA 1996); Heatley v. State, 636 So. 2d 153 (Fla. 1st DCA 1994); Brown v. State, 616 So. 2d 1137 (Fla. 4th DCA 1993). Therefore, he is entitled to no relief in this appeal on this point. Appellant also argues that because the condition of probation to complete the drug farm program as modifi…
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Horton v. State, 646 So. 2d 253 (Fla. 1st DCA 1994)…observed, “Ashley turned primarily on the prosecution’s failure to give notice of intent to habitualize before the plea. It therefore remains for the supreme court to clarify the application of that case in other factual contexts.” Heatley v. State, 636 So. 2d 153, 154 (Fla. 1st DCA 1994), rev. denied, 645 So. 2d 452 (Fla. Sept. 7, 1994). Under the Rules of Criminal Procedure adopted by the supreme court, a trial judge should, in order to determine the voluntariness of a plea, place the defendant under oath,…
Previewing 3 of 15 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)
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- Isley v. State, 565 So. 2d 389 (Fla. 5th DCA 1990)
- Trujillo-Pentate v. State, 609 So. 2d 72 (Fla. 1st DCA 1992)
- State v. Trujillo-Pentate, 620 So. 2d 1231 (Fla. 1993)
- State v. Washington, 620 So. 2d 1231 (Fla. 1993)