JAMES CONLAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Conlan pleaded guilty to unemployment fraud under a plea agreement where the state promised to recommend 100 days in jail plus probation, but a successor judge imposed 40 months in prison instead. The court affirmed the sentence, holding that since the agreement was only for a state recommendation (not a firm sentence cap), Conlan had no right to withdraw his plea when the judge imposed a greater sentence.
A defendant has no right to withdraw a guilty plea when the plea agreement calls only for the state to recommend a particular sentence and it is clear the trial judge may impose a greater sentence, provided the state fulfills its promise to make that recommendation.
[1] When a trial judge cannot honor a plea agreement, the judge must affirmatively offer the defendant the right to withdraw the plea.
[2] A defendant need not make a motion to withdraw a plea to preserve the issue on appeal when the trial judge cannot honor a plea agreement.
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Join FLexlaw to unlock all legal intelligence“when there has been a firm agreement for a specified sentence and the judge determines to impose a greater sentence, the defendant has the right to withdraw the plea. However, if the agreement only calls for the state to recommend a particular sentence and it is clear that the trial judge may impose a greater sentence, the defendant cannot withdraw the plea if a greater sentence is imposed so long as the state carries out its promise.”
Establishes the distinction between binding sentence agreements and recommendation-only agreements that determines withdrawal rights
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Join FLexlaw to unlock all legal intelligenceConlan pleaded guilty to obtaining unemployment benefits by fraud pursuant to a plea agreement under which the state agreed to recommend a sentence of…
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COBB, Judge.
The appellant, James Conlan, pled guilty to obtaining unemployment benefits by fraud pursuant to a plea agreement under which the state would recommend a sentence of 100 days in the county jail plus a period of probation within which to make restitution. A successor trial judge imposed a prison sentence of 40 months without affording Conlan the opportunity to withdraw his plea. He urges this as error. The state argues that it fulfilled its bargain by affirmatively recommending the lesser sentence. Conlan, on the other hand, contends that the opinion in Goins v. State, 672 So. 2d 30 (Fla.1996) entitles him to the opportunity to withdraw his plea. In Goins, Justice Grimes, for the majority, wrote:
There are many varieties of plea agreements. Negotiations often take place only between the state and the defendant, although in some instances the trial judge participates in the negotiations. Even though the plea has been accepted and regardless of whether the judge participated in the negotiations, the judge is never bound to honor the agreement. Davis v. State, 308 So. 2d 27 (Fla.1975); Brown v. State, 245 So. 2d 41 (Fla.1971).
However, when there has been a firm agreement for a specified sentence and the judge deter- - mines to impose a greater sentence, the defendant has the right to withdraw the plea. Fla.R.Crim.P. 3.172(g). On the other hand, if the agreement only calls for the state to recommend a particular sentence and it is clear that the trial judge may impose a greater sentence, the defendant cannot withdraw the plea if a greater sentence is imposed so long as the state carries out its promise. State v. Adams, 342 So. 2d 818 (Fla.1977). [Footnote omitted].
The issue before us, then, is whether there was a firm agreement for a specified sentence (100 days plus probation) or merely an agreement for a state recommendation. Based upon the record before us, we agree with the argument of the state that the agreement called only for a recommendation by the state.
Moreover, the trial court, in taking the plea, specifically advised Conlan of the maximum penalty he was subject to as a result of his plea. The judge taking the plea never agreed to the recommended sentence, and stated only that he would impose sentence after receiving a PSI. Although the case was assigned to a different judge prior to imposition of sentence, nothing was said or done by either judge to mislead the defendant or commit the court to a lesser sentence than the one ultimately imposed.
AFFIRMED.
W. SHARP and ANTOON, JJ., concur.
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McDONALD v. State, 703 So. 2d 1220 (Fla. 5th DCA 1998)…presenting a record demonstrating reversible error. The trial court did not err in rejecting the state’s recommendation and adjudicating the defendant guilty without affording the defendant the opportunity to withdraw his plea. See Conlan v. State, 688 So. 2d 375 (Fla. 5th DCA 1997). AFFIRMED. PETERSON, THOMPSON and ANTOON, JJ., concur. . §§ 812.13, 893.03, Fla. Slat. (1995).…
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Clearveau v. State, 708 So. 2d 687 (Fla. 3d DCA 1998)…PER CURIAM. Affirmed. See Goins v. State, 672 So. 2d 30 (Fla.1996); Conlan v. State, 688 So. 2d 375 (Fla. 5th DCA 1997).…
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Hairston v. State, 753 So. 2d 791 (Fla. 5th DCA 2000)…PER CURIAM. AFFIRMED: See State v. Adams, 342 So. 2d 818 (Fla.1977); Conlan v. State, 688 So. 2d 375 (Fla. 5th DCA 1997). ANTOON, C.J, GRIFFIN and THOMPSON, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 245 So. 2d 41 (Fla. 1971)
- Kit Goins v. State, 672 So. 2d 30 (Fla. 1996)
- Vikki Zimmerman Davis v. State, 308 So. 2d 27 (Fla. 1975)
- State v. Adams, 342 So. 2d 818 (Fla. 1977)