JESSE FRANK HOSKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hoskins appealed his sentencing following a nolo contendere plea to robbery with a deadly weapon, arguing the trial court violated his plea agreement by imposing probation and restitution not mentioned in the agreement. The Florida First District Court of Appeal affirmed the sentence, holding that because Hoskins failed to object or move to withdraw his plea at sentencing, the issue was not cognizable on direct appeal.
A defendant cannot raise the issue of a trial court's failure to comply with a plea agreement on direct appeal if the defendant did not object to or move to withdraw the plea at sentencing.
[1] A defendant waives the right to challenge on direct appeal the imposition of a sentence or condition not contemplated by a plea agreement if the defendant fails to object…
[2] A trial court's imposition of probation and restitution not included in a plea agreement is not cognizable on direct appeal when the defendant fails to object or move to…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Noting that Murray had not moved to withdraw his plea at sentencing, the court held that the issue was not cognizable on direct appeal.”
Establishes the key procedural rule that failure to move to withdraw the plea at sentencing bars the issue from direct appeal review
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn September 1992, Hoskins entered a plea of nolo contendere to robbery with a deadly weapon under a written plea agreement capping his sentence at 12…
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SHIVERS, Senior Judge.
Jesse Frank Hoskins has appealed from a sentence imposed following his plea of nolo contendere to robbery with a deadly weapon. We affirm.
In September 1992, Hoskins tendered a plea of nolo contendere to robbery with a deadly weapon. The plea agreement provided for a maximum sentence of 12 years as an habitual offender, if Hoskins qualified for such classification; otherwise, sentencing would be pursuant to the guidelines. The written agreement made no provision for restitution or probation, and neither was mentioned at the plea hearing prior to the trial court’s acceptance of the plea.
At the subsequent sentencing hearing, the state presented evidence qualifying Hoskins as an habitual offender. The court adjudicated him guilty, and imposed a 12-year habitual offender sentence followed by 5 years of probation; the court also required restitution, the amount to be set at a later proceeding. Hoskins neither objected to the imposition of probation and restitution, nor did he move to withdraw his plea based thereon. However, he argues on appeal that, because the trial court failed to comply with the plea agreement, this court should remand either for resentencing or to permit withdrawal of his plea.
In Murray v. State, 566 So. 2d 30 (Fla. 1st DCA 1990), the appellant sought to withdraw his plea, citing the trial court’s failure to comply with the terms of his plea agreement. Noting that Murray had not moved to withdraw his plea at sentencing, the court held that the issue was not cognizable on direct appeal. Murray, 566 So. 2d at 31. See also, Eggers v. State, 624 So. 2d 336 (Fla. 1st DCA 1993) (reversed denial of a motion for post-conviction relief raising the imposition of a probationary term not mentioned in the plea agreement); Rolison v. State, 618 So. 2d 275 (Fla. 1st DCA 1993) (reversed imposition of restitution not mentioned in plea agreement, where trial court had previously denied motion to withdraw the plea raising the issue).
In this case, Hoskins neither objected nor moved to withdraw his plea based on the trial court’s imposition of probation and restitution outside of the plea agreement. We therefore affirm.
ERVIN and WEBSTER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tynes v. State, 693 So. 2d 118 (Fla. 2d DCA 1997)…court improperly imposed a three-year minimum mandatory prison term in violation of the plea agreement. This issue is not cognizable on direct appeal because the defendant neither objected below nor moved to withdraw his plea. See Hoskins v. State, 636 So. 2d 788 (Fla. 1st DCA 1994). Affirmed in part, reversed in part and remanded with instructions. CAMPBELL, A.C.J., and SCHOONOVER and FULMER, JJ., concur.…
Authorities Cited
- Eggers v. State, 624 So. 2d 336 (Fla. 1st DCA 1993)
- Ruggirello v. State, 566 So. 2d 30 (Fla. 4th DCA 1990)
- Murray v. State, 566 So. 2d 30 (Fla. 1st DCA 1990)
- Rolison v. State, 618 So. 2d 275 (Fla. 1st DCA 1993)