HARRY LEE BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harry Lee Bell appeals his conviction for robbery and weapons charges, arguing that he was improperly tried on higher charges after withdrawing a guilty plea to lesser offenses. The appellate court affirmed the conviction, holding that withdrawal of a guilty plea erases the prior plea as if it never occurred, and that Bell waived the double jeopardy defense by failing to raise it at trial.
The court held that when a defendant withdraws a guilty plea that is accepted by the court, the plea is nullified as if it had never been entered ab initio, thus permitting the prosecution to proceed on the original or amended charges without violating double jeopardy principles. Additionally, the double jeopardy defense was waived because Bell failed to raise it at trial.
[1] A defendant waives the defense of double jeopardy by failing to raise it in the trial court.
[2] Withdrawal of a guilty plea, when granted by the court, renders the plea a nullity, as if it had never been entered.
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Join FLexlaw to unlock all legal intelligence“When the appellant withdrew his plea of guilty and it was accepted by the court, it was as if a plea had never been entered ab initio.”
Establishes that a withdrawn plea is nullified retroactively, allowing prosecution on original or amended charges
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Join FLexlaw to unlock all legal intelligenceBell was initially arraigned on four counts including conspiracy, grand larceny, and weapons violations. On February 10, 1971, he withdrew his not gui…
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Associate Judge.
Appellant Bell was found guilty on April 15, 1971, by a jury of robbery and possession of a short barreled shotgun and was sentenced on March 16, 1971.
When appellant was arraigned, he pled not guilty to four counts as follows:
1. Conspiracy to commit a felony
2. Grand larceny
3. Possession of short barreled shotgun
4. Carrying concealed firearm.
On February 10, 1971, the appellant, with leave of court, withdrew his plea of not guilty and entered a plea of guilty as to count 1, conspiracy to commit a felony and attempted grand larceny, a lesser offense under count 2. On March 19, 1971, appellant Bell voluntarily filed a motion to withdraw the guilty pleas which after due consideration was granted by the court.
On March 24, 1971, a new information was filed in four counts as follows:
1. Conspiracy to commit a felony
2. Robbery
3. Possession of short barreled shotgun
4. Carrying concealed firearm,
and on March 29, 1971, appellant entered a plea of not guilty on each count. After conviction on counts 1 and 2 of the new information and denial of a motion for new trial, appellant brought this appeal based on four assignments of error.
Assignments 2, 3 and 4 are without merit, so they will not be discussed. However, assignment of error 1 which was as follows:
“The trial court erred in permitting the defendant to stand trial on a higher charge than he pled to,”
raises the issue of double jeopardy.
The first time this defense has been raised by the appellant is on appeal and so the failure of the appellant to raise the issue of double jeopardy in the trial constitutes a waiver of that defense. Suiero v. State, 248 So.2d 219 (Fla.App.1971); Robinson v. State, 239 So.2d 282 (Fla.App.1970).
When the appellant withdrew his plea of guilty and it was accepted by the court, it was as if a plea had never been entered ab initio. To hold otherwise would cause the trial courts to be apprehensive of accepting or allowing the withdrawal of a plea because such discretionary action might prevent justice from being carried out.
As' Chief Justice Cardozo said, “But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
WALDEN and OWEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)…elief from the violation of double jeopardy rights has been granted indirectly in post-trial proceedings, see, e.g., Chapman v. State, 442 So. 2d 1024 (Fla. 5th DCA 1983); Wilson v. Eastmoore, 419 So. 2d 673 (Fla. 5th DCA 1982). .See Bell v. State, 262 So. 2d 244 (Fla. 4th DCA 1972), cert. denied, 265 So. 2d 50 (Fla.1972); Sitiero v. State, 248 So. 2d 219 (Fla. 4th DCA 1971); Robinson v. Wainwright, 240 So. 2d 65 (Fla. 2d DCA 1970); Robinson v. State, 239 So. 2d 282 (Fla. 2d DCA 1970).…1 / 2
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State v. McCLAIN, 509 So. 2d 1360 (Fla. 2d DCA 1987)…ly entered indicate that the second charge was dismissed. The state objected to the sentence and filed a timely notice of appeal. When the court set aside McClain’s original plea, it was as if a plea had never been entered ab initio, Bell v. State, 262 So. 2d 244 (Fla. 4th DCA), cert. denied, 265 So. 2d 50 (Fla.1972), and the state had the option of prosecuting the defendant on the original charges. Snell v. State, 388 So. 2d 1353 (Fla. 5th DCA 1980). Once these charges were refiled, the defendant could only…
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Garcia v. State, 444 So. 2d 969 (Fla. 5th DCA 1983)…failed to raise the defense, we are bound to affirm the conviction (there was no sentence under the firearm conviction). See, Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981); Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980); Bell v. State, 262 So. 2d 244 (Fla. 4th DCA 1972). However, we do certify to the Florida Supreme Court a question of great public importance which is inherent in this case, to-wit: Whether one can be convicted, although not sentenced, of a lesser included offense after he has b…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Suiero v. State, 248 So. 2d 219 (Fla. 4th DCA 1971)
- Robinson v. State, 239 So. 2d 282 (Fla. 2d DCA 1970)