BARBETTE RUE BOOKOUT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant should be allowed to withdraw her nolo contendere plea because the sentencing judge refused to honor a prior agreement to permit withdrawal if a pending federal appeal was resolved favorably.
Defendant pleaded nolo contendere pursuant to a negotiated plea agreement. The agreement stipulated that the judge would allow withdrawal of the plea …
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Defendant was adjudicated guilty of the crime of “Aiding and Assisting in the Commission of a Felony”, and sentenced to three years in the state prison, consequent upon a plea of nolo contendere. Appellant’s point of appeal involves the refusal of the sentencing judge to allow the withdrawal of the nolo plea and accept a plea of not guilty.
It appears the plea of nolo was negotiated with the knowledge and consent of the state’s attorney and the original trial judge, and under the following circumstances testified to by the original trial judge (who was subsequently replaced by-the sentencing judge):
“Yes, I recall by virtue of the negotiated plea between you and the then-prac-tising prosecutor, Assistant County Solicitor for my then-division.
“It was inquired of me as to whether or not I would accept the plea of ‘no contest’ by the defendant, Mrs. Bookout, with the proviso that if a then-pending appeal from another criminal prosecution in the Federal court should be resolved favorably to her, I would then entertain and consider and grant a withdrawal of that plea and give the lady an opportunity to plead ‘not guilty’ and have the cause go tp trial.
“I had discussed this with you and with the prosecutor. The prosecutor was in favor of it and under the circum*189stances and conditions I acknowledged that I would accept such an arrangement.”
The criminal prosecution in the Federal court was resolved favorably to appellant, and under the negotiated plea, she should have had an opportunity to plead “not guilty”.
The state concedes error and we agree. Accordingly the judgment- below is reversed and remanded to the lower court with directions to permit withdrawal of the plea of nolo contendere and allow substitution of a plea of not guilty.
Reversed.
WALDEN and OWEN, JJ., concur.
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Thatcher v. State, 385 So. 2d 163 (Fla. 5th DCA 1980)…the narrow point on which the case turned. In such event, defendant would be granted an opportunity to withdraw his plea. Richmond v. State, 375 So. 2d 1132 (Fla. 1st DCA 1979); Tamers v. State, 284 So. 2d 402 (Fla. 4th DCA 1973); Bookout v. State, 243 So. 2d 188 (Fla. 4th DCA 1971). These tactics by the State are especially surprising in view of the strength of the State’s position on the merits. AFFIRMED. ORFINGER and COBB, JJ., concur. . Jurisdictional matters are normally raised by a motion to dismiss…