RONALD KETTERER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2011-09-14
No. 4D09-4261
TAYLOR and HAZOURI, JJ., concur.
69 So. 3d 1016 Florida District Court of Appeal, Fourth District (2011) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Ronald Ketterer appeals the denial of his motion to withdraw his guilty plea to charges of battery on a law enforcement officer, resisting arrest with violence, and obstructing service of a warrant. The court reversed, finding that trial counsel provided deficient advice regarding the consequences of the plea, particularly failing to advise that a downward departure from sentencing guidelines was unavailable for a prison releasee reoffender (PRR), and that the plea colloquy was defective.


Holding

The court reversed the denial of the motion to withdraw the plea, finding good cause existed under Florida Rule of Criminal Procedure 3.170(f) because trial counsel acknowledged giving misadvice and the plea colloquy was defective. The plea colloquy failed to orally inform Ketterer of the minimum sentence, the PRR status, and the unavailability of a downward departure. Additionally, the court reversed the sentence on the resisting arrest charge as imposing an illegal sentence.


Headnotes

[1] A trial court abuses its discretion when it denies a motion to withdraw a plea made prior to sentencing, especially when the defendant was misadvised by counsel regarding…

[2] Oral motions to withdraw a plea prior to sentencing are permissible.

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Key Quotes

“The trial court erred in this case by not granting the motion to withdraw plea for two reasons: 1) trial counsel acknowledged giving misadvice and the written plea form and plea colloquy supports that assertion of misadvice; and 2) the plea colloquy was defective because there was no mention of a minimum sentence, PRR sentencing, or the unavailability of a downward departure.”

The court's articulation of the two independent grounds for reversing the denial of the motion to withdraw the plea.

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Facts & Procedural History

Ketterer was charged with battery on a law enforcement officer, resisting arrest with violence, and obstructing service of a warrant, with the state s…

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Opinion of the Court
CONNER, J.

CONNER, J.

Ronald Ketterer appeals the denial of his motion to withdraw his plea and the resulting convictions and sentences. He argues that he was misadvised by trial counsel concerning the consequences of his plea and the trial court abused its discretion in denying his motion to withdraw his plea made prior to being sentenced. We agree and reverse.

Ketterer was charged with battery on a law enforcement officer, resisting arrest with violence, and obstructing service of a warrant. The state filed notice of its intent to seek imposition of a minimum mandatory sentence as a prison releasee reof-fender (PRR). Ketterer entered an open plea to the court upon the representation of his trial counsel that trial counsel would move the court for a downward departure from the sentencing guidelines. Trial counsel filed a motion for downward departure after Ketterer’s open plea was accepted by the trial court.

The plea was entered on one day, and sentencing was set for a different day. In advising Ketterer about the consequences of his plea, trial counsel forgot that one cannot ask for a downward departure from the sentencing guidelines for a PRR. During the plea colloquy, nothing was said about PRR sentencing by trial counsel, the state attorney, or the judge. Regarding sentencing, the judge specifically said during the plea colloquy:

Mr. Ketterer, the maximum penalty for Counts 1 and 2 is five years Florida State Prison, Count 3, one year in the Broward County jail, and it is an open plea to the Court. And your attorney has filed a motion for downward departure, but there is no guarantee what the Court will do. Do you understand?

The judge said nothing about a minimum sentence of five years, but the plea form states, “The minimum penalty is: [then handwritten:] 5 yrs. FSP.” However, the plea form also states, “I understand that if the Court accepts my plea to the charge(s) listed above, my sentence will be: [then handwritten:] open — Downward Departure.”

During the plea colloquy, trial counsel said there was one more thing he wanted to check before he filed the motion for downward departure, and he requested to come back another day for sentencing. At the very end of the plea hearing, the State said: “Just to let the Court know, he’s *1018PRR on Count 2.” The parting comment by the State did not result in any changes to the plea colloquy by the trial court or defense counsel. Nothing in the record indicates that Ketterer understood at that time what “PRR” meant.

When Ketterer appeared for sentencing a month later, trial counsel made an oral motion to withdraw the plea. Trial counsel admitted on the record that he forgot a downward departure cannot be granted for a PRR and therefore misadvised Ketterer on the plea consequences. The trial judge thought she recalled that she had conducted an adequate plea colloquy, but in an abundance of caution, she decided to appoint conflict-free counsel to address the motion to withdraw the plea and set the matter for a hearing at a later date.

When the case came back for a hearing, conflict-free counsel announced on the record that he had reviewed the plea transcript, he was satisfied the plea was entered voluntarily, and he did not have the grounds to ask the court to withdraw the plea. The record reveals that no formal written motion to withdraw the plea was filed. Conflict-free counsel stated to the court: “It doesn’t meet the criteria to be able to withdraw the plea based on what’s in there even though the special public defender from the conflict office misad-vised him. This is not the forum or the type of motion necessary to do such an act.” (emphasis added). The trial judge stated shortly thereafter, “Okay. Then he’ll be sentenced to that and he can, you know, go forth on the 3.850 [post-conviction relief proceedings].”

Oral motions to withdraw a plea prior to sentencing are allowed. See Carter v. State, 22 So.3d 793 (Fla. 1st DCA 2009); Morales v. State, 973 So.2d 679 (Fla. 2d DCA 2008). A trial court’s denial of a motion to withdraw a plea is generally reviewed under an abuse of discretion standard. Wright v. State, 961 So.2d 1036 (Fla. 4th DCA 2007).

The trial court erred in this case by not granting the motion to withdraw plea for two reasons: 1) trial counsel acknowledged giving misadvice and the written plea form and plea colloquy supports that assertion of misadvice; and 2) the plea colloquy was defective because there was no mention of a minimum sentence, PRR sentencing, or the unavailability of a downward departure. Florida Rule of Criminal Procedure 3.170(f) provides: “The court ... shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn .... ” (emphasis added). It appears from the record good cause was shown. Motions to withdraw a plea prior to sentence “must be liberally construed in favor of the defendant, as the law favors a trial on the merits.” Rappoport v. State, 24 So.3d 1211, 1213 (Fla. 4th DCA 2009).

In Thornton v. State, 747 So.2d 439 (Fla. 4th DCA 1999), this court reversed the denial of a motion to withdraw plea based on findings that the trial court failed to inform the defendant during the plea colloquy of potential mandatory minimum penalties. Although in this case the written plea form contained a statement that the minimum penalty was five years, the same written plea form also said Ketterer could ask for a downward departure, which is not accurate. During the colloquy, the judge said nothing orally about a minimum sentence, and she orally said the defense would be asking for a downward departure, which is not legally permitted for someone subject to PRR sanctions. The judge never orally advised Ketterer that he was subject to PRR sanctions, and there was nothing in the written plea form to put him on notice that he faced PRR sanctions. It is true that at the very end of the plea hearing the State said, “Just to *1019let the Court know, he’s PRR on Count 2.” However, there is nothing in the record to show that Ketterer would know what “PRR” meant. Thus, the plea colloquy in this case was deficient.

Ketterer also contends on appeal that the written sentence for resisting an officer with violence filed in this case imposes an illegal sentence of five years and a day, which the State concedes was error. We reverse the sentence on the resisting arrest charge because it imposes an impermissible time period. § 775.082(9)(a)3.d., Fla. Stat. (2008).

Reversed and remanded.

TAYLOR and HAZOURI, JJ., concur.


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Citator

Cited By

  • Giovani Guerra v. State (Fla. 4th DCA 2022)
    …he appeal of this order was timely filed. “A trial court’s denial of a motion to withdraw a plea is generally reviewed under an abuse of discretion standard.” Long v. State, 194 So. 3d 539, 541 (Fla. 4th DCA 2016) (quoting Ketterer v. State, 69 So. 3d 1016, 1018 (Fla. 4th DCA 2011)). Appellant maintains his plea was involuntary because his former counsel erroneously advised him that he would be eligible for gain time. At the evidentiary hearing on the motion to withdraw plea, Appellant’s forme…
  • Burton P. Long v. State, 194 So. 3d 539 (Fla. 4th DCA 2016)
    …onths imprisonment in accordance with his negotiated plea. Appellant gave notice of appeal. Appellate Analysis “A trial court’s denial of a motion to withdraw a plea is generally reviewed under an abuse of. discretion standard.” Ketterer v. State, 69 So. 3d 1016, 1018 (Fla. 4th DCA 2011). Pursuant to Florida Rule of Criminal Procedure 3.170(f), “[t]he .court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn.” (emphasis added)…
  • Giovani Guerra v. State (Fla. 4th DCA 2022)
    …0). The appeal of this order was timely filed. “A trial court’s denial of a motion to withdraw a plea is generally reviewed under an abuse of discretion standard.” Long v. State, 194 So. 3d 539, 541 (Fla. 4th DCA 2016) (quoting Ketterer v. State, 69 So. 3d 1016, 1018 (Fla. 4th DCA 2011)). Appellant maintains his plea was involuntary because his former counsel erroneously advised him that he would be eligible for gain time. At the evidentiary hearing on the motion to withdraw plea, Appellant’s former couns…

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