DAMON HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Damon Harris appeals his sentence for attempted second-degree murder after pleading nolo contendere. The trial court enhanced his sentence to a first-degree felony based on use of a deadly weapon, but the appellate court reversed because the record does not demonstrate Harris understood and agreed to the deadly weapon enhancement when entering his plea.
The court reversed and remanded because the record does not demonstrate that Harris understood the nature and consequences of his plea, specifically the deadly weapon enhancement. Although a trial court may enhance a second-degree murder charge to a first-degree felony based on use of a deadly weapon, Rule 3.172(c)(i) of the Florida Rules of Criminal Procedure requires the trial court to advise the defendant of the maximum possible penalty, which includes such enhancements.
[1] A trial court must advise a defendant of the maximum possible penalty provided by law when accepting a plea, including any enhancements, as such enhancements are a defini…
[2] A defendant may be entitled to withdraw a plea if it is shown that the plea was entered without a proper understanding of its nature and consequences.
Previewing 2 of 4 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“We deem the enhancement of Defendant's sentence under these circumstances to be a definite, immediate and largely automatic effect on the range of Defendant's punishment.”
Establishes that the deadly weapon enhancement is a critical matter that must be communicated to the defendant as part of the maximum possible penalty under the plea acceptance rule.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHarris was indicted for attempted first-degree murder but pleaded no contest to the lesser included offense of attempted second-degree murder. At rese…
The full statement of facts, procedural history, and disposition for this case are member content.
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GUNTHER, Chief Judge.
Appellant, Damon Harris, defendant below (Defendant), appeals a final judgment and sentence. Defendant had entered a plea of nolo contendere to attempted second de- gree murder, a second degree felony. Apparently, due to the involvement of a deadly weapon, the trial court enhanced Defendant’s sentence to a first degree felony pursuant to section 775.087(l)(b), Florida Statutes (1991). We reverse because the record does not demonstrate that Defendant understood and agreed to the deadly weapon enhancement when entering his plea.1
Felonies of the first degree are punishable by up to thirty years while second degree felonies are punishable by no more than fifteen years. §§ 775.082(3)(b), (c), Fla. Stat. (1991). Moreover, this court has recently clarified that although second degree murder is a first degree felony, an attempted second degree murder is a second degree felony. Harris v. State, 650 So. 2d 639, 640 (Fla. 4th DCA 1995). The fact that a weapon is used in attempted second degree murder, however, is a proper reason to reclassify the second degree felony as a first degree felony. Id. at 641.
Although Defendant was indicted for attempted first degree murder, Defendant pled no contest to the lesser included offense of attempted second degree murder. Previously, we reversed and remanded this case on a separate issue involving the waiver of the right to be sentenced as a juvenile under section 39.111, Florida Statutes (1989). Harris v. State, 633 So. 2d 562 (Fla. 4th DCA 1994). Upon remand, the record reveals that the trial court resentenced Defendant to twenty years, exceeding the statutory maximum of fifteen years for a second degree felony. Apparently, the trial court had reclassified the attempted second degree murder to a first degree felony pursuant to section 775.087(1), Florida Statutes (1991). However, Defendant’s counsel had stated that his intent was to make the plea to a second degree felony. Thus, it is unclear from the record whether Defendant entered his plea knowing of the enhancement.
Although case law and statutes allow the trial court to enhance the second degree murder charge to a first degree felony due to use of a deadly weapon, Rule 3.172(c)(i), Florida Rules of Criminal Procedure, governing the acceptance of pleas, mandates the trial court to advise the defendant of “the maximum possible penalty provided by law_” We deem the enhancement of Defendant’s sentence under these circumstances to be a definite, immediate and largely automatic effect on the range of Defendant’s punishment. See Zambuto v. State, 413 So. 2d 461, 462 (Fla. 4th DCA 1982). As such, the trial court, pursuant to Rule 3.172(c)(i), was required to advise Defendant of the enhancement.
Moreover, good cause to withdraw a plea has been found where a defendant proves that the plea was entered without a proper understanding of its nature and consequences. Setzer v. State, 575 So. 2d 747, 748 (Fla. 5th DCA 1991). Based upon the record before us, we are not convinced that Defendant understood the nature and consequences of his plea. We, therefore, remand for an evidentiary hearing in which the trial court may determine whether Defendant understood his plea and enhancement due to the use of a deadly weapon.
REVERSED AND REMANDED.
FARMER and KLEIN, JJ., concur. . Defendant attempted to move to withdraw his plea at resentencing. Cf. Kravitz v. State, 638 So. 2d 636 (Fla. 5th DCA 1994). Further, Defendant's plea agreement specifically does not waive his right to appeal any sentence outside the guidelines unless specifically contained with the plea agreement. Cf. Norman v. State, 634 So. 2d 212 (Fla. 4th DCA 1994). Thus, we have jurisdiction. Fla.R.App.P. 9.140(b).
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State v. Hossain Rajaee, 745 So. 2d 469 (Fla. 5th DCA 1999)…it the withdrawal of a plea. See Rubenstein (trial court abuses discretion in refusing to allow a withdrawal of a guilty plea where the defendant thought or believed that he would be paroled and not sentenced to prison as was done); Harris v. State, 660 So. 2d 409 (Fla. 4th DCA 1995) (cause remanded for hearing to determine whether the defendant should be allowed to withdraw his plea where it was unclear from the record whether the defendant understood that he was entering a plea to an enhanced sentence); Edw…
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Raynard Wilson v. State, 898 So. 2d 191 (Fla. 1st DCA 2005)…empted second-degree murder is a second-degree felony, properly reclassified as a first-degree felony based on use of a weapon); Badia v. State, 770 So. 2d 300 (Fla. 3d DCA 2000); Goutier v. State, 692 So. 2d 978 (Fla. 2d DCA 1997); Harris v. State, 660 So. 2d 409, 410 (Fla. 4th DCA 1995); Maynoldi v. State, 456 So. 2d 587, 588 (Fla. 3d DCA 1984). Where the sentence imposed exceeds the 30-year maximum sentence for a first-degree felony, as outlined in section 775.082(3)(b), Florida Statutes (2003), it is subj…
Authorities Cited
- Francesco Zambuto v. State, 413 So. 2d 461 (Fla. 4th DCA 1982)
- Setzer v. State, 575 So. 2d 747 (Fla. 5th DCA 1991)
- Norman v. State, 634 So. 2d 212 (Fla. 4th DCA 1994)
- Harris v. State, 633 So. 2d 562 (Fla. 4th DCA 1994)
- Fields v. City OF W. Palm Beach, 650 So. 2d 639 (Fla. 4th DCA 1995)
- Harris v. State, 650 So. 2d 639 (Fla. 4th DCA 1995)
- McCLOUD v. State, 638 So. 2d 636 (Fla. 2d DCA 1994)
- Kravitz v. State, 638 So. 2d 636 (Fla. 5th DCA 1994)