BREON ANTWON DAVIS A/K/A CEDRIC LAMAR DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Davis appealed the trial court's denial of his motion to withdraw a guilty plea to a third-degree felony, claiming his attorney misadvised him about the sentence he would receive. The Florida Fifth District Court of Appeal affirmed the denial, finding that the appellant failed to provide an adequate appellate record to demonstrate error.
The trial court did not abuse its discretion. Although a defendant may petition to withdraw a plea within thirty days of sentencing if there was misadvisement about the sentence, such misadvisement can be corrected during the plea colloquy when the judge advises the defendant of the potential or maximum sentence. Here, Davis failed to provide the appellate record with the plea agreement, transcripts of plea negotiations, plea colloquy, or sentencing documents, preventing review of what was actually communicated to him.
[1] A defendant may not withdraw a guilty plea after sentencing based on alleged misadvice from defense counsel regarding the maximum sentence if the plea colloquy included a…
[2] The burden is on the appellant to demonstrate error in the trial court's decision.
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“A defendant is not allowed to withdraw his or her guilty plea after sentence has been imposed based on the alleged misadviee of defense counsel as to the maximum length of his sentence where, during the plea colloquy, both the defense attorney and the court informed the defendant of the maximum sentence that he faced.”
Establishes the legal standard that misadvisement regarding sentence can be cured by proper judicial advisement during the plea colloquy
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavis entered a guilty plea to a third-degree felony and was sentenced to sixty months in prison. After sentencing, he moved to withdraw his plea with…
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Appellant entered a plea to a third-degree felony, and was later sentenced to sixty months in prison. He timely moved to withdraw his plea on the ground that his attorney assured him that he would receive the minimum sentence as set forth on the scoresheet. The trial court denied the motion to withdraw his guilty plea. On appeal, he asserts the trial' court abused its discretion in denying the motion to withdraw the plea. We affirm.
Florida Rule of Criminal Procedure 3.170(l) permits a defendant to petition the trial court to withdraw the plea within thirty days of sentencing. However, any alleged misadviee from defense counsel as to the possible sentence may have been corrected during the plea colloquys by the judge correctly advising defendant of the potential or maximum sentence. Mays v. State, 3 So.3d 423, 424 (Fla. 4th DCA 2009). A defendant is not allowed to -withdraw his or her guilty plea after sentence has been imposed based on the alleged misadviee of" defense counsel as to the maximum length' of his sentence where, during the plea colloquy, both the defense attorney and the court informed the defendant of the maximum sentence that he faced. Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th DCA 2010).
However, the appellate record in this case does not contain the plea agreement or any transcripts of plea negations, plea colloquy, or sentencing. It is unclear from the record what Appellant may have been told by his attorney, the prosecutor, or the trial judge, during the plea colloquy, for example, with regard to the possible range of sentences or maximum sentence that could be imposed. In an appellate proceeding, the decisions of a trial court have the presumption of correctness and the burden is on the Appellant to demonstrate error. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Florida Rule of Appellate. Procedure 9.200(e) places the burden on the appellant to ensure the appellate record is complete and transmitted, in accordance with the-appellate rules. Fay v. Craig, 99 So.3d 981, 982 (Fla. 5th DCA 2012). The appellate record is devoid of any support for Appellant’s position. Therefore, Appellant has not met his burden of demonstrating that the trial court abused its discretion by denying the motion to withdraw the plea.
AFFIRMED.
LAWSON, C.J. and TORPY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Nelfrard v. State, 34 So. 3d 221 (Fla. 4th DCA 2010)
- FAY v. Craig, 99 So. 3d 981 (Fla. 5th DCA 2012)
- Mays v. State, 3 So. 3d 423 (Fla. 4th DCA 2009)