TORRENCE BETRANDE SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant has appealed a habitual violent felony offender sentence imposed for aggravated battery following his plea of nolo con-tendere. He alleges that contrary to the requirements of Ashley v. State, 614 So. 2d 486, 490 n. 8 (Fla.1993), he was not advised of the possible imposition of a 10 year minimum mandatory sentence at the plea colloquy before acceptance of his plea, and therefore his sentence should be reversed. Appellant is challenging the voluntary or intelligent character of his plea without having presented this issue to the trial court. The issue that Simmons asks this court to consider should be presented first to the trial court through a motion to withdraw his 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 v. State, 373 So. 2d 898 (Fla.1979); Heatley v. State, 636 So. 2d 153 (Fla. 1st DCA), rev. denied, 645 So. 2d 452 (Fla.1994).
AFFIRMED
ZEHMER, KAHN and VAN NORTWICK, JJ., concur.
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Barone v. State, 841 So. 2d 653 (Fla. 3d DCA 2003)…ive’s disputed testimony. The admission of this unimpeached eyewitness testimony had a devastating effect on Barone’s defense. See Garcia v. State, 816 So. 2d 554, 563 (Fla.2002); Brooks v. State, 787 So. 2d 765, 779-80 (Fla.2001); Tindall v. State, 645 So. 2d 129 (Fla. 4th DCA 1994). Accordingly, we reverse the judgment of convictions and remand for a new trial.3 . The state does not dispute that the statement is hearsay that does not fall within any hearsay exception and violates the Confrontation Clause.…
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Authorities 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)
- Heatley v. State, 636 So. 2d 153 (Fla. 1st DCA 1994)