KIT GOINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's convictions and sentences are affirmed because he failed to move to withdraw his plea when the trial court imposed a sentence exceeding the plea agreement recommendation, and the trial court had no duty to offer withdrawal without such a motion.
When a trial court does not participate in plea negotiations or promise to impose the recommended sentence, it has no duty to provide the defendant a clear opportunity to withdraw the plea at sentencing if it imposes a greater sentence than recommended.
[1] A trial court that does not participate in plea negotiations and does not promise to impose a recommended sentence has no duty to offer a defendant the opportunity to wit…
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Join FLexlaw to unlock all legal intelligence“When the trial court does not participate in the plea negotiations or promise the defendant that it will impose the recommended sentence, it is under no duty to provide the defendant with a clear opportunity to withdraw his or her plea at sentencing when it decides to impose a sentence greater than that recommended in the plea agreement.”
Statement of the controlling legal rule in the First District
Appellant entered into a plea agreement with a recommended sentence, but the trial court imposed a sentence greater than that recommended in the agree…
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ERVIN, Judge.
Because appellant failed to move to withdraw his plea when the trial court imposed a sentence greater than that recommended in the plea agreement, we affirm appellant’s convictions and sentences. When the trial court does not participate in the plea negotiations or promise the defendant that it will impose the recommended sentence, it is under no duty to provide the defendant with a clear opportunity to withdraw his or her plea at sentencing when it decides to impose a sentence greater than that recommended in the plea agreement. Lepper v. State, 451 So. 2d 1020, 1021 (Fla. 1st DCA 1984). And see Perkins v. State, 647 So. 2d 202 (Fla. 1st DCA) (in order for court to properly consider voluntariness of plea on direct appeal, trial court must have been asked to resolve the issue in a prior motion to withdraw), review denied, 648 So. 2d 723 (Fla.1994); Robinson v. State, 373 So. 2d 898 (Fla.1979) (appeal from plea should never be a substitute for motion to withdraw plea). In so ruling, we note our apparent conflict with Perry v. State, 510 So. 2d 1083 (Fla. 2d DCA 1987) (where trial court cannot honor plea agreement, it must affirmatively take action to permit the defendant the opportunity to withdraw the plea — no motion to withdraw required). And see Rodriguez v. State, 610 So. 2d 476 (Fla. 2d DCA 1992); Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974).
We affirm, however, without prejudice to appellant raising the issue in a motion for postconvietion relief. See Eggers v. State, 624 So. 2d 336 (Fla. 1st DCA 1993).
AFFIRMED.
MINER and WOLF, JJ., concur.
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Citator
Cited By
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Kit Goins v. State, 672 So. 2d 30 (Fla. 1996)…GRIMES, Chief Justice. We review Goins v. State, 652 So. 2d 1283 (Fla. 1st DCA 1995), because of its conflict [*31] with Rodriguez v. State, 610 So. 2d 476 (Fla. 2d DCA 1992), Perry v. State, 510 So. 2d 1083 (Fla. 2d DCA 1987), and Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974). We have jurisdiction under art…
Authorities Cited
- Gissendanner v. State, 373 So. 2d 898 (Fla. 1979)
- Robinson v. State, 373 So. 2d 898 (Fla. 1979)
- Lepper v. State, 451 So. 2d 1020 (Fla. 1st DCA 1984)
- Eggers v. State, 624 So. 2d 336 (Fla. 1st DCA 1993)
- Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974)
- Reynaldo Rodriguez v. State, 610 So. 2d 476 (Fla. 2d DCA 1992)
- Perry v. State, 510 So. 2d 1083 (Fla. 2d DCA 1987)
- Derwin Jay Perkins v. State, 647 So. 2d 202 (Fla. 1st DCA 1994)