ULYSSES SUTTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ulysses Sutton was convicted of unlawful sale of marijuana cigarettes after pleading guilty. He appealed, challenging the trial court's denial of his motion to withdraw his guilty plea, the verification of the information, and his waiver of jury trial. The appellate court affirmed the conviction, finding no abuse of discretion by the trial judge.
The trial court did not abuse its discretion in denying the motion to withdraw the guilty plea because Sutton presented no grounds sufficient to require the motion be granted. The information met verification requirements and any formal defect was waived by Sutton's failure to object before pleading to the merits. Sutton waived his right to a jury trial by freely and voluntarily entering a guilty plea.
“It is within the discretion of the trial court to allow a defendant to, at any time before sentence, withdraw a plea of guilty, F.S. 909.13, F.S.A. The burden is cast upon the appellant to clearly show that the trial judge abused his discretion in not permitting the plea of guilty to be withdrawn.”
Establishes the legal standard for withdrawal of guilty pleas and the burden on the appellant to demonstrate abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceSutton initially pleaded not guilty to the charge. At a November 16, 1966 hearing, represented by counsel, he changed his plea to guilty after hearing…
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Appellant was adjudged to be guilty of the offense of unlawful sale of marijuana cigarettes and has appealed from this judgment and sentence.
The record shows that appellant initially entered a plea of not guilty to the charge against him and at a hearing on November 16, 1966, appellant, who was represented by counsel, was allowed to change his initial plea of not guilty to that of guilty. On that date the court heard the testimony of the state’s witnesses. Sentencing was deferred until December 5, 1966. On that latter date appellant, who was represented by counsel,, sought to withdraw his plea of guilty and change his plea to not guilty. The reason offered by counsel for appellant was that the appellant had not had an opportunity to' get with the narcotics agents. The trial judge denied the motion to withdraw the plea of guilty.
It is within the discretion of the trial court to allow a defendant to, at any time before sentence, withdraw a plea of guilty, F.S. 909.13, F.S.A. The burden is cast upon the appellant to clearly show that the trial judge abused his discretion in not permitting the plea of guilty to be withdrawn. Fryer v. State, 102 So.2d 41 (Fla.App. 1st, 1958). Under the facts presented in the case at bar we are convinced that *590there was no abuse of discretion in the decision of the trial judge in denying the motion to withdraw the plea of guilty. Appellant was permitted to change his plea once and when he requested that he again be allowed to change his plea he did not present any grounds that might have been sufficient to require that such motion be granted. When the discretion of the trial judge was questioned in Pope v. State, 56 Fla. 81, 47 So. 487 (Fla.1908) the court stated:
“ * * * when * * * a defendant deliberately pleads guilty to a criminal charge under circumstances that should reasonably have prompted him and his counsel to be prepared to meet the charge, and no motion is made for leave to withdraw the plea of guilty till after the state witnesses have been discharged, and there is no direct allegation or proof that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances that put the defendant at a disadvantage in protecting his rights, the discretion of the trial court is not shown to have been abused.”
Appellant also complains that the information was not properly verified. F.S. 906.04 (2) F.S.A. provides that no objection to the matter of verification of the information shall be made after the defendant moves to quash or pleads to the merits of the cause. There was no motion to quash made in this case nor did appellant object to any manner in the lower court to the verification of the information. The information is contained in the record on appeal and meets the requirements of F.S. 906.04 (1) F.S.A. Along these same lines we note that in Champlin v. State, 122 So.2d 412 (Fla.App.2d 1960) the court, observed that the absence or omission of the verification of an information is only a formal defect which may be waived and such absence does not render the information void.
Appellant also contends that he was deprived of his right to a jury trial. By freely and voluntarily entering a plea of guilty appellant waived his right to a trial by jury. McCall v. State, 136 Fla. 343, 186 So. 667 (Fla.1939).
No reversible error having been made to appear, the judgment appealed is hereby affirmed.
WIGGINTON, C. J., and SPECTOR, J., concur.
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State v. Braverman, 348 So. 2d 1183 (Fla. 3d DCA 1977)…rton v. State, 317 So. 2d 145 (Fla.2nd D.C.A. 1975). There are other cases which have approved the trial judge’s denial of same [Pope v. State, 56 Fla. 81, 47 So. 487 (1908); Ostermann v. State, 183 So. 2d 873 (Fla.2nd D.C.A. 1966); Sutton v. State, 202 So. 2d 589 (Fla.1st D.C.A. 1967)] but I have found no cases that entertained a common law petition for certiorari and thereby quashed a [*1189] trial judge’s order, entered prior to any sentence. A review of the cases reveals that the courts lean toward a ful…
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Blackshear v. State, 480 So. 2d 207 (Fla. 1st DCA 1985)…However, the burden is on the appellant under either standard, i.e., good cause or abuse of discretion, to prove that a trial court’s denial of a motion to withdraw a guilty plea constitutes reversible error. Yesnes v. State, supra; Sutton v. State, 202 So. 2d 589 (Fla. 1st DCA 1967); Onnestad v. State, 404 So. 2d 403 (Fla. 5th DCA 1981). In this case, it was the province of the trial court to weigh the evidence before him including his observations of the defendant together with the opinion of the examining…
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State v. Polo, 242 So. 2d 457 (Fla. 1970)…on against a defendant; and further, that being a matter of form, a defective affidavit, or the total absence of an affidavit, could be waived by failure to make timely objection. See Bryan v. State, 41 Fla. 643, 26 So. 1022 (1899); Sutton v. State, 202 So. 2d 589 (1st D.C.A.Fla.1967). In the instant case, the Circuit Court recognized the three cases cited above, but concluded that they were pertinent only in the event that any defect was apparent. We do not find any re [*459] striction in the language of Fl…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 56 Fla. 81 (Fla. 1908)
- Champlin v. State, 122 So. 2d 412 (Fla. 2d DCA 1960)
- McCall v. State, 136 Fla. 343 (Fla. 1939)
- Morton v. Morton, 102 So. 2d 41 (Fla. 1st DCA 1958)