MELVIN GRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed Gray's sentence where he failed to preserve challenges to sentencing deviation from plea offer and adjudication discrepancy between charged and agreed offenses.
A defendant who fails to file a motion to withdraw his plea or object at sentencing cannot challenge on direct appeal claims that the sentence deviated from a plea agreement or that he was adjudicated guilty of a different offense than agreed.
[1] A defendant who pleads guilty must file a motion to withdraw the plea to preserve on direct appeal a claim that the sentence imposed violated the terms of the plea agreem…
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Join FLexlaw to unlock all legal intelligenceGray pleaded guilty pursuant to a plea agreement but was sentenced higher than the offer provided. Additionally, he was charged with and adjudicated g…
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PER CURIAM.
Appellant challenges his sentence on the ground that the court deviated from a plea offer by imposing a higher sentence than bargained for.
However, appellant failed to preserve the issue by moving to withdraw his plea or correct a sentencing error (if any).
See Ruff v. State, 840 So. 2d 1145, 1146 (Fla. 5th DCA 2003) (noting defendant who pleads nolo contendere must file motion to withdraw the plea in order to preserve claim that sentence was imposed in violation of plea agreement); Garrett v. State, 788 So. 2d 328, 329 (Fla. 4th DCA 2001) (holding defendant may not seek review of sentencing errors on direct appeal unless an objection was lodged at trial or a motion for postcon-viction relief was filed pursuant to Florida Rule of Criminal Procedure 3.800(b)).
Appellant also complains that the court adjudicated him guilty of driving while license revoked (“DWLR”), rather than driving while license suspended (“DWLS”).
He was charged with DWLR and all of the sentencing documents refer to DWLR, but his written plea agreement refers to DWLS. Again, appellant failed to preserve this issue.
Furthermore, he has not shown how he was prejudiced, as the two violations are similar crimes with identical punishments. See § 322.34(2)(e), (5), Fla. Stat. (2001). We therefore affirm.
POLEN, C.J., WARNER and GROSS, JJ., concur.
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Citator
Cited By
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Timmie C. Henderson v. State, 863 So. 2d 493 (Fla. 5th DCA 2004)…te, 687 So. 2d 39 (Fla. 5th DCA 1997). Henderson has not demonstrated manifest injustice in this case, even if we considered he successfully preserved this issue for appeal. See Leonard v. State, 760 So. 2d 114, 116, n. 13 (Fla.2000); Gray v. State, 847 So. 2d 1100 (Fla. 4th DCA 2003); Ruff v. State, 840 So. 2d 1145 (Fla. 5th DCA 2003). Our affirmance, however, is without prejudice to Henderson to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 for post-conviction relief seeking to withdra…
Authorities Cited
- Garrett v. State, 788 So. 2d 328 (Fla. 4th DCA 2001)
- Ruff v. State, 840 So. 2d 1145 (Fla. 5th DCA 2003)