TERRENCE HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terrence Hall appeals his probation revocation sentence, arguing the trial court violated his plea agreement by imposing a three-year mandatory minimum term that was not part of the original sentencing parameters. The Fourth District affirms, holding that the claim was not preserved for appeal because Hall failed to file a motion to withdraw his plea within thirty days of sentencing, as required by Florida Rule of Criminal Procedure 3.170.
A defendant's claim that a sentence exceeds the plea bargain is cognizable on appeal only if the defendant preserves the claim by filing a motion to withdraw the plea within thirty days after sentencing. Because Hall failed to file such a motion, his claim is not preserved for appeal and cannot be raised on appeal.
[1] A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within…
[2] A violation of a plea agreement is cognizable on appeal only if preserved by a motion to withdraw the plea.
Previewing 2 of 5 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“when a trial judge cannot honor a plea bargain the judge must affirmatively offer the defendant the right to withdraw the plea and that a motion to withdraw the plea need not be made to preserve the issue on appeal”
Establishes the foundational principle from Goins v. State that judges must offer withdrawal rights when plea agreements cannot be honored.
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Join FLexlaw to unlock all legal intelligenceHall was on probation for sale of cocaine within 1000 feet of a school when a probation violation affidavit was filed. Hall reached a plea agreement w…
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DELL, J.
Terrance Hall appeals the sentence imposed after revocation of his probation. We affirm as this issue has not been preserved.
Appellant wás on probation for the sale of cocaine within 1000 feet of a school when an affidavit of violation of probation was filed. Appellant reached an agreement with the State for the revocation of his probation and a guideline sentence of 51.15 months in prison. The plea form provides for an adjudication of 51.15 months in prison, but does not mention a three-year minimum mandatory term for violation of section 893.13(l)(c)l, Florida Statutes (1997), sale of cocaine within 1000 feet of a school.
The trial court adjudicated appellant guilty, revoked his probation, and sentenced him to 51.15 months in prison. Immediately thereafter, the State asked the trial court to impose the three-year minimum mandatory sentence. Defense counsel objected because this term was not imposed as part of the original sentence. After defense counsel stated that he advised appellant that he could appeal if given the mandatory sentence, the trial court imposed the three-year minimum mandatory, making 36 months of his 51.15 month sentence mandatory.
Appellant argues that the trial court should have allowed him to withdraw his plea because it sentenced him outside of the parameters of the plea agreement. In Goins v. State, 672 So. 2d 30, 32 (Fla.1996), our supreme court approved the principle that “when a trial judge cannot honor a plea bargain the judge must affirmatively offer the defendant the right to withdraw the plea and that a motion to withdraw the plea need not be made to preserve the issue on appeal.” (emphasis in original). However, the court also stated,
At the same time, we request the Criminal Rules Committee and the Appellate Rules Committee of The Florida Bar to submit proposed rules which will provide a specified period of time within which a defendant could move to withdraw a plea on the ground that the judge had imposed a sentence greater than that set forth in the plea agreement and which would further provide that the failure to file such a motion would preclude the defendant from raising the issue on appeal.
Id. (footnote omitted).
Following Goins, Florida Rule of Criminal Procedure 3.170 and Florida Rule of Appellate Procedure 9.140 were amended as follows:
Motion to Withdraw the Plea After Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after the rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(B)(i)-(v).
Amendments to the Florida Rules of Criminal Procedure, 685 So. 2d 1253, 1257 (Fla.l996)(quoting rule 3.170).
A defendant who pleads guilty or nolo contendere may otherwise directly appeal only
(i) the lower tribunal’s lack of subject matter jurisdiction;
(ii) á violation of the plea agreement, if preserved by a motion to withdraw plea;
(iii) an involuntary plea, if preserved by a motion to withdraw plea;
(iv) a sentencing error, if preserved; or (v) as otherwise provided by law.
Rule 9.140(b)(2)(B)(i)-(v), Fla. R.App. P. We agree with the conclusion-reached in Green v. State, 700 So. 2d 384 (Fla. 1st DCA 1997), that if the court imposes a sentence in excess of the plea bargain, his claim will be cognizable on appeal only if he filed a motion to withdraw his plea to preserve his claim.1 Appellant failed to preserve this point for appeal because he failed to file a motion to withdraw his plea.
Accordingly, we affirm appellant’s sentence. However, we do so without prejudice for him to file a motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure.
AFFIRMED.
GUNTHER and STEVENSON, JJ., concur. . In Green v. State, 700 So. 2d 384 (Fla. 1st DCA 1997), because the rule amendments became effective January 1, 1997, and were not applicable to the defendant who was sentenced on July 19, 1996, the court stated that "if his situation ... constitutes a sentence in excess of the plea bargain, his claim is cognizable in this appeal because the amendments to Rules 9.140 and 3.170 requiring him to file a motion to withdraw were not effective at the time he was sentenced.” Id. at 387.
Cases With Similar Vibessemantic neighbors from the corpus
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Gafford v. State, 783 So. 2d 1191 (Fla. 1st DCA 2001)…to be a “violation of the plea agreement” that must be challenged under Florida Rule of Criminal Procedure 3.170© within 30 days after the trial court renders the sentence. See Green v. State, 700 So. 2d 384, 387 (Fla. 1st DCA 1997); Hall v. State, 765 So. 2d 282 (Fla. 4th DCA 2000). Failure to file a motion to withdraw the plea within 30 days waives the issue for appellate review, and the defendant is limited to filing a motion pursuant to Florida Rule of Criminal Procedure 3.850. See Fla.R.App.P. 9.140(b)(…
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Williams v. State, 958 So. 2d 529 (Fla. 4th DCA 2007)…d for counts II and III. It is a basic principle that the defendant should be granted an opportunity to withdraw his plea if the court imposes a sentence exceeding the negotiated sentence. Goins v. State, 672 So. 2d 30, 32 (Fla.1996); Hall v. State, 765 So. 2d 282 (Fla. 4th DCA 2000); Green v. State, 784 So. 2d 1244 (Fla. 2d DCA 2001). Accordingly, we reverse and remand for further proceedings with respect to ground six of the motion. We affirm without discussion the summary denial of the other seven grounds…
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Meriweather v. State, 793 So. 2d 986 (Fla. 2d DCA 2001)…ecause he failed to file a motion to withdraw the plea. See Fla. R.App.P. 9.140(b)(2)(B)(ii)(defendant who pleads guilty or nolo contendere may directly appeal a violation of plea agreement, if preserved by a motion to withdraw plea); Hall v. State, 765 So. 2d 282 (Fla. 4th DCA 2000); Green v. State, 700 So. 2d 384 (Fla. 1st DCA 1997). We therefore affirm the appellant’s sentence without prejudice for him to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Affirm…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kit Goins v. State, 672 So. 2d 30 (Fla. 1996)
- Amendments TO THE Florida Rules OF Criminal Procedure, 685 So. 2d 1253 (Fla. 1996)
- Green v. State, 700 So. 2d 384 (Fla. 1st DCA 1997)