GARY RAMBO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Rambo appeals the trial court's denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, challenging his 120-month sentence. The appellate court affirmed the denial but permitted Rambo to file a sufficient motion to withdraw his plea within thirty days.
The trial court properly denied Rambo's Rule 3.850 motion because he failed to seek to withdraw his plea as required under Murphy v. State. The court affirmed without prejudice, allowing Rambo thirty days to file a facially sufficient motion to withdraw his plea.
[1] A motion for postconviction relief seeking resentencing under revised guidelines is properly denied if the movant does not also seek to withdraw their plea.
[2] A defendant may be permitted to file a facially sufficient motion to withdraw a plea within a specified period after a court's mandate.
Previewing 2 of 4 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“Rambo does not, however, seek to withdraw his plea pursuant to Murphy. Therefore, the trial court did not err in denying his motion.”
Establishes that failure to seek plea withdrawal is fatal to a Rule 3.850 challenge to a sentence imposed pursuant to a plea agreement.
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Join FLexlaw to unlock all legal intelligenceRambo received a 120-month prison sentence at the low end of the 1995 sentencing guidelines pursuant to a plea agreement. He previously filed a motion…
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[*192] PER CURIAM.
Gary Rambo appeals from the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s order without prejudice to Rambo’s right to file, within thirty days of this court’s mandate, a facially sufficient rule 3.850 motion to withdraw his plea.
In Rambo v. State, 805 So. 2d 829 (Fla. 2d DCA 2001), this court affirmed the denial of Rambo’s motion to correct illegal sentence under rule 3.800 without prejudice to any right Rambo may have had to file a motion to withdraw his plea pursuant to rule 3.850 and Murphy v. State, 773 So. 2d 1174 (Fla. 2d DCA 2000) (en banc). As a result, Rambo filed the current rule 3.850 motion. In this motion, Rambo alleges that his sentence of 120 months in prison, a sentence at the low end of the 1995 guidelines, is illegal pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000). Rambo contends that he should be resen-tenced to a low-end sentence under the 1994 guidelines of 92.85 months because his plea agreement called for a low-end guidelines sentence.
Rambo does not, however, seek to withdraw his plea pursuant to Murphy. Therefore, the trial court did not err in denying his motion. Accordingly, we affirm the trial court’s order without prejudice to Rambo’s right to file, within thirty days of the date of this court’s mandate, a facially sufficient rule 3.850 motion seeking to withdraw his plea. We caution Rambo, however, that if he files a sufficient motion to withdraw his plea, the State will have the option of accepting a sentence at the low end of the 1994 guidelines or bringing him to trial on the original charges. See Hoag v. State, 801 So. 2d 207 (Fla. 2d DCA 2001); Sidell v. State, 787 So. 2d 139 (Fla. 2d DCA 2001). If Rambo is convicted after a trial on the original charges, he may receive a sentence that is significantly longer than the 120 month sentence he is serving presently.
In addition, Rambo alluded to gain time in his motion for postconviction relief. In Rambo, this court also affirmed without prejudice to “any right Rambo might have to file a petition for writ of mandamus seeking review of the Department of Correction’s denial of gain time in the circuit court in the county where he is incarcerated pursuant to Newsome v. Singletary, 637 So. 2d 9 (Fla. 2d DCA 1994).” 805 So. 2d at 829. The record reflects that at the time Rambo filed his motion in Hillsborough County, he was incarcerated at the Polk Correctional Institution/Work Camp in Polk County, Florida. Thus, the circuit court in Hillsborough County properly denied his motion for postconviction relief.
Affirmed.
PARKER, SALCINES, and STRINGER, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jones v. State, 826 So. 2d 1104 (Fla. 2d DCA 2002)…inger and Murphy, whether Jones’s plea was voluntary. If the court finds it was not, the State will have the option of accepting a sentence at the low end of the 1994 guidelines or bringing Jones to trial on the original charges. See Rambo v. State, 816 So. 2d 191 (Fla. 2d DCA 2002); Hoag v. State, 801 So. 2d 207 (Fla. 2d DCA 2001). Reversed and remanded. FULMER and STRINGER, JJ., Concur.…
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Green v. State, 857 So. 2d 304 (Fla. 2d DCA 2003)…reen under these circumstances was to be allowed to withdraw his plea. See Trenary v. State, 453 So. 2d 1132, 1133-34 (Fla. 2d DCA 1984). Because Green did not seek appropriate relief, the trial court correctly denied his motion. See Rambo v. State, 816 So. 2d 191, 192 (Fla. 2d DCA 2002). Accordingly, we affirm the trial court’s order without prejudice to Green’s right to file in the trial court, within sixty days of the date of this court’s mandate, a motion seeking to withdraw his plea pursuant to rule 3.85…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Pagliaro v. Penske Auto Ctrs., Inc., 773 So. 2d 1174 (Fla. 2d DCA 2000)
- Hogan v. Ardc Corp., 637 So. 2d 9 (Fla. 4th DCA 1994)
- Sidell v. State, 787 So. 2d 139 (Fla. 2d DCA 2001)
- Rambo v. State, 805 So. 2d 829 (Fla. 2d DCA 2001)
- Manning v. State, 801 So. 2d 207 (Fla. 4th DCA 2001)
- Hoag v. State, 801 So. 2d 207 (Fla. 2d DCA 2001)