ROBERT EARL PETTIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Earl Pettis was convicted by jury after the trial court accepted his plea to lewd and lascivious battery, sentenced him pursuant to the plea agreement, but then sua sponte set aside the plea without legal cause and tried him again. The appellate court held this violated double jeopardy protections because jeopardy attached when the valid plea was accepted.
Jeopardy attached when the trial court unconditionally accepted appellant's plea. Because the court had found the plea voluntarily entered in accordance with Florida Rule of Criminal Procedure 3.172(c), no legal cause existed to set it aside. The subsequent jury trial violated appellant's double jeopardy rights.
[1] A court cannot increase a sentence after the defendant has begun serving it, as doing so violates the constitutional prohibition against double jeopardy.
[2] Once a court has imposed a sentence following a guilty plea, the sentence cannot be vacated and the plea withdrawn at the behest of the prosecution to impose a harsher pe…
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Join FLexlaw to unlock all legal intelligence“It is axiomatic that in cases involving a conditional plea, as in the present case, jeopardy attaches once the plea is accepted on conditions favorable to the defendant.”
Establishes the fundamental principle that jeopardy attaches upon acceptance of a conditional plea
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Join FLexlaw to unlock all legal intelligenceAppellant entered a nolo contendere plea to lewd and lascivious battery under a plea bargain providing for five years imprisonment, five years probati…
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ERVIN, J.
Appellant, Robert Earl Pettis, argues on appeal that he was twice placed in jeopardy for the same offense when he was tried by a jury and convicted after the court had accepted his plea to lewd and lascivious battery and sentenced him in accordance with a plea agreement. We agree.
Pursuant to a plea bargain, appellant entered a plea of nolo contendere to the offense of lewd and lascivious battery in return for a sentence of five years in prison, followed by five years of probation and registration as a sexual predator. The court, in compliance with Florida Rule of Criminal Procedure 3.172(c), asked the defendant all the questions required for determining the voluntariness of the plea. Following the colloquy, the judge stated his satisfaction that the plea was freely and voluntarily given, accepted it, adjudged appellant guilty as charged, and sentenced him in accordance with the plea agreement to the five-year prison and probation terms, together with the probationary conditions relating to appellant’s status as a sexual predator. Thereafter, in response to comments from appellant concerning collateral matters, the trial judge sua sponte set aside the plea for the reason that it was not voluntary. In so doing, the trial judge never indicated any desire to change the sentence, and appellant never indicated the plea was anything other than voluntary; in fact, the court acted over appellant’s objection.
The case was later tried before a jury and appellant was convicted as charged. Appellant’s double jeopardy objection relates to the subsequent trial.1
It is axiomatic that in cases involving a conditional plea, as in the present case, jeopardy attaches once the plea is accepted on conditions favorable to the defendant. Brown v. State, 367 So. 2d 616, 620-21 (Fla.1979). See also State ex rel. Wilhoit v. Wells, 356 So. 2d 817 (Fla. 1st DCA 1978); Jackson v. State, 682 So. 2d 1227 (Fla. 4th DCA 1996).
In the instant case, the record shows that the court unconditionally accepted appellant’s plea. Once the court had accepted the plea, it was binding and could only be set aside or withdrawn over defense objection for legal cause. See State ex rel. Wilhoit, 356 So. 2d at 822; Zamora v. State, 737 So. 2d 1165 (Fla. 2d DCA 1999); Jupin v. State, 664 So. 2d 1031 (Fla. 2d DCA 1995). We agree with appellant that no legal cause was demonstrated for setting aside the plea in that the judge had found the plea voluntarily entered in accordance with rule 3.172(c).
We conclude that jeopardy attached when the trial court accepted appellant’s plea, that no legal ground existed for setting aside or withdrawing the plea, and that the subsequent trial violated appellant’s double jeopardy rights. See Jupin, 664 So. 2d at 1032; Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984). The case is reversed and remanded with directions to enter a conviction and sentence in accordance with the plea agreement.
REVERSED and REMANDED for proceedings consistent with this opinion.
BARFIELD and BENTON, JJ„ concur. . We reject the state's argument that issue was not preserved for appeal by contemporaneous objection. See Jones v. State, 711 So. 2d 633, 634 (Fla. 1st DCA 1998) (a double jeopardy violation constitutes fundamental error).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Joslin v. State, 826 So. 2d 324 (Fla. 2d DCA 2002)…urt accepts a defendant’s plea. Thereafter, the court may not set the plea aside over the defendant’s objection without legal cause, and the defendant is protected from ever being tried for the offenses covered in the accepted plea. Pettis v. State, 803 So. 2d 903 (Fla. 1st DCA 2002); Zamora v. State, 737 So. 2d 1165 (Fla. 2d DCA 1999). Jeopardy also attaches when a court imposes a sentence, after which the double jeopardy clauses protect the defendant from receiving a punishment greater than the sentence al…
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Ford v. State, 829 So. 2d 946 (Fla. 4th DCA 2002)…titioner, but will result in a windfall to victims with small losses. Nor do the Marshalls or Valdez oppose redistribution. The state does object, however, to vacating the pleas, arguing that it would violate double jeopardy, citing Pettis v. State, 803 So. 2d 903 (Fla. 1st DCA 2002)(jeopardy attaches when a plea is accepted and can only be set aside over defense objection for legal cause). See also Troupe v. Rowe, 283 So. 2d 857 (Fla.1973)(double jeopardy prohibited a sentence which had already been imposed…
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L.L.H. v. State, 873 So. 2d 1252 (Fla. 5th DCA 2004)…ncy had been filed, the juvenile defendant asserts that the juvenile court had jurisdiction over him and that jeopardy attached when the juvenile court accepted his guilty plea, thus precluding the court from vacating said plea. See Pettis v. State, 803 So. 2d 903, 904 (Fla. 1st DCA 2002) (jeopardy attached when the trial court unconditionally accepted defendant’s nolo contendere plea pursuant to plea bar [*1254] gain). If the juvenile defendant was placed in jeopardy in the juvenile court, then the defendant…
Authorities Cited
- Brown v. State, 367 So. 2d 616 (Fla. 1979)
- State ex rel. William M. C. Wilhoit v. Wells, 356 So. 2d 817 (Fla. 1st DCA 1978)
- Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)
- Jones v. State, 711 So. 2d 633 (Fla. 1st DCA 1998)
- Jeorgie Jupin v. State, 664 So. 2d 1031 (Fla. 2d DCA 1995)
- Zamora v. State, 737 So. 2d 1165 (Fla. 2d DCA 1999)
- Jackson v. State, 682 So. 2d 1227 (Fla. 4th DCA 1996)