BILLY JOHN GLOVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Billy Glover appeals his conviction following a no contest plea to burglary charges, challenging an error in the sentencing colloquy where the court incorrectly stated his maximum sentence as thirty years rather than forty years with a thirty-year mandatory minimum as a violent career criminal. The court dismissed the appeal without prejudice because Glover failed to move to withdraw his plea before appealing, holding that Ashley violations do not permit direct appeal from guilty or nolo contendere pleas without first moving to withdraw.
A defendant is precluded from bringing a direct appeal challenging an Ashley violation when judgment has been entered on a plea of guilty or nolo contendere, and the defendant has not moved to withdraw the plea before appealing. Although the error was detected and corrected by the state prior to sentencing, Glover's failure to move to withdraw his plea before bringing his direct appeal defeats appellate jurisdiction.
[1] A defendant who pleads no contest and is afforded an opportunity to withdraw their plea after an Ashley violation is precluded from bringing a direct appeal based on that…
[2] A defendant may be precluded from bringing a direct appeal when judgment has been entered on a plea of guilty or nolo contendere, even in matters involving alleged Ashley…
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Join FLexlaw to unlock all legal intelligence“Even in matters involving alleged Ashley violations, a defendant is precluded from bringing a direct appeal when judgment has been entered on a plea of guilty or nolo contendere.”
States the dispositive rule that procedural requirements for withdrawing pleas must be followed even when sentencing colloquy errors are present.
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Join FLexlaw to unlock all legal intelligenceGlover was charged with ten counts related to three burglaries. On November 4, 1996, he entered a no contest plea, with all parties agreeing he could …
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PER CURIAM.
Billy Glover was charged with ten counts related to three distinct burglaries and the state filed a notice of intent to seek enhanced penalties pursuant to section 775.084, Florida Statutes. On November 4,1996, Glover’s no contest plea was accepted by the court and the state, Glover, and the court all agreed Glover could “get sentenced up to thirty years.” One month before Glover’s sentencing the state sent a letter to the trial court, copying Glover’s counsel, in which it noted Glover qualified as a violent career criminal under section 775.084(l)(e), Florida Statutes. It noted the maximum penalty announced at the plea colloquy was incorrect, and in fact Glover faced a maximum sentence of forty years with a thirty year minimum mandatory-
The state recognized its initial error in computing Glover’s sentence rendered his plea suspect, and requested the court inform Glover of the correct maximum and minimum mandatory penalties, affording Glover the opportunity to withdraw his plea. At sentencing the court found Glover met the requirements of a violent career criminal and gave Glover the opportunity to withdraw his plea. Glover announced his decision to decline the court’s offer and proceed to sentencing, stating he would reserve his objection for appeal.
Undoubtedly an Ashley1 violation occurred in this case. However, the error made during the plea colloquy was detected by the state one month prior to sentencing and the court afforded Glover ample opportunity to withdraw his plea. Glover declined to do so. In Williams v. State, 691 So. 2d 484, 485 (Fla. 4th DCA 1997) (en banc), we held that “Even in matters involving alleged Ashley violations, a defendant is precluded from bringing a direct appeal when judgment has been entered on a plea of guilty or nolo contende-re.” Williams, 691 So. 2d at 485. Because that is what occurred here, without Glover’s moving to withdraw his plea before bringing this appeal, we dismiss without prejudice to his moving in the trial court to withdraw the plea.
GLICKSTEIN, GUNTHER and POLEN, JJ., concur. . Ashley v. State, 614 So. 2d 486 (Fla.1993).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- Williams v. State, 691 So. 2d 484 (Fla. 4th DCA 1997)