WILLIE C. JONES, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the Department of Corrections has the authority to forfeit gain time upon revocation of probation, the trial court erred in failing to address the defendant's request to withdraw his plea when the plea agreement and oral pronouncement were inconsistent with the written sentencing order regarding gain time credit.
[1] A trial court cannot countermand the Department of Corrections' statutory authority to forfeit gain time upon revocation of probation.
[2] A defendant may be entitled to withdraw a guilty plea when the court's oral pronouncement or written plea agreement regarding sentencing credit is not honored.
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Join FLexlaw to unlock all legal intelligenceJones pled guilty to robbery and kidnaping, was sentenced, and later violated probation. Upon pleading no contest to the violation, he was sentenced t…
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PALMER, J.
Willie C. Jones, Jr. (“Jones”) appeals the trial court’s order denying his motion to enforce his plea agreement. We affirm in part and reverse in part.
In January 1991, Jones pled guilty to one count of kidnaping and one count of robbery. On May 3, 1991 he was sentenced to a term of 15 years incarceration on the robbery conviction followed by five years of probation on the kidnaping conviction. Based upon time served and accumulated gain time, Jones was released from prison and started his probation in November of 1997.
Jones was charged with violating his probation by changing his residence without the consent of his probation officer. In July of 1999 he pled no contest to the' violation charge and, as a result thereof, the trial court revoked his probation and sentenced him to a term of 20 years incarceration, with credit for time served. After Jones began to serve his sentence on the probation violation, he filed a motion to enforce his plea agreement alleging that the Department of Corrections (DOC) has failed and refused to obey the court’s sentencing order by forfeiting his gain time. The motion alleged that, when entering his plea of no contest to the charge of violating his probation, Jones was told by the trial judge in open court that he would receive credit for 15 years gain time towards the 20 year term of imprisonment. DOC has refused to award him such credit. The motion requested that the trial court either find DOC in contempt of court for failing to comply with the court’s sentencing order or direct DOC to award him 15 years credit gain time. In the alternative, the motion requested that the court conduct an evidentiary hearing to determine whether he was entitled to receive any relief, including the right to withdraw his plea.
The trial court, without holding an evidentiary hearing, entered an order denying Jones’ motion to enforce his plea agreement, finding that DOC had the legal authority to forfeit credit for gain time upon revocation of probation. We affirm that ruling because the court properly recognized that DOC’s forfeiture of gain time cannot be countermanded by the court. See Singletary v. Whittaker, 739 So. 2d 1183- (Fla. 5th DCA 1999). See also Forbes v. Singletary, 684 So. 2d 173 (Fla. 1996). However, the trial court erred in failing to address Jones’ alternative request that he be allowed to withdraw his plea.
A transcript of the proceedings held before the court on the July 26, 1999 plea conference confirms Jones’ allegation that he was told by the trial judge that he would receive 15 years credit gain time towards the agreed upon 20 year sentence. The plea agreement and the court’s oral pronouncement at the plea hearing are inconsistent with the court order on this issue. In that regard, the plea agreement signed by Jones contains the following statement: “The court has agreed to the following disposition: 20 year DOC CR [credit] 15 year DOC.” The oral pronouncement at the plea hearing was confinement for 20 years “with credit for the 15 years that you’ve already served.” However, the court order entered on July 26, 1999 reflects the sentence as follows: “The defendant is ordered to serve 20 Year(s) in the Department of Corrections with credit for 20 day(s) time served and with credit for any time served in the Department of Corrections as to this case;
Since the plea agreement and the court’s oral pronouncement at the plea hearing provided that Jones was to receive 15 years credit against his 20 year term he has a valid basis to withdraw his plea if that credit is not forthcoming.
In State v. Leroux, 689 So. 2d 235 (Fla. 1997), a defendant pled guilty pursuant to a negotiated plea and was sentenced to a term of 15 years imprisonment with a three year mandatory minimum sentence. Defendant ultimately filed a motion seeking post conviction relief alleging that he had entered his plea based upon counsel’s representation that he would be released from prison in four years because of his entitlement to provisional gain time credit, but DOC had informed him that he would have to serve over seven years before being released. The trial court denied the motion but, upon review, the Supreme Court ruled that such misrepresentations by counsel could form the basis for post conviction relief in the form of leave to withdraw a guilty plea. Similarly, in the instant case, since Jones entered into the plea agreement based upon the understanding he would receive 15 years credit, the failure to receive it provides a sufficient basis for withdrawal of the plea.
We remand this matter to the trial court for further proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; REMANDED.
HARRIS and GRIFFIN, JJ„ concur.
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Citator
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Dellahoy v. State, 816 So. 2d 1253 (Fla. 5th DCA 2002)…agreement after considering the DOC forfeiture of gain time or allow him to withdraw his plea. The DOC’s forfeiture of the gain time cannot be countermanded by the court, but neither can that forfeiture thwart the plea bargain. E.g., Jones v. State, 782 So. 2d 552 (Fla. 5th DCA 2001); see also Wallace v. State, 793 So. 2d 78 (Fla. 2d DCA 2001); Williams v. Dep’t of Corrections, 734 So. 2d 1132 (Fla. 3d DCA 1999). ORDER VACATED; REMANDED. GRIFFIN and ORFINGER, R.B., J.J., concur.…
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Dellofano v. State, 946 So. 2d 127 (Fla. 5th DCA 2007)…brooks v. State, 817 So. 2d 934 (Fla. 4th DCA 2002) (same). I recognize that wé have entertained appeals from orders on motions to enforce plea agreements in the past, see, e.g., Barnett v. State, 933 So. 2d 1269 (Fla. 5th DCA 2006); Jones v. State, 782 So. 2d 552 (Fla. 5th DCA 2001), but I do not believe that we should continue to do so when there is no rule authorizing the motion. In other words, I agree with the Fourth District’s holdings in Ciehoski and Seabrooks. In this case, however, Dellofano’s mot…1 / 2
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Rogers v. State, 864 So. 2d 521 (Fla. 5th DCA 2004)…a sentence which was discovered after sentencing. Before Barn-hill and Jackson, this court held that 3.850 relief is available when a judge tells a defendant that he will receive prison credit, and such credit is not forthcoming. See Jones v. State, 782 So. 2d 552 (Fla. 5th DCA 2001) (reversing the trial court’s denial of post-conviction motion “to enforce plea agreement,” which alleged that plea was involuntary because the trial court had indicated that the defendant would receive full prison credit followin…
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
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- Forbes v. Singletary, 684 So. 2d 173 (Fla. 1996)
- Singletary v. Whittaker, 739 So. 2d 1183 (Fla. 5th DCA 1999)