WILLIAM FRANCIS KIEFER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction must be vacated because the trial judge failed to affirmatively offer him the opportunity to withdraw his plea when the judge could not honor the plea bargain condition that probation would be granted if the pre-sentence investigation was favorable.
When a trial judge cannot conscientiously honor a plea bargain, the judge must affirmatively take action to permit the defendant the opportunity to withdraw his plea.
[1] When a trial judge determines he cannot conscientiously honor a plea bargain, the judge must affirmatively take action to permit the defendant the opportunity to withdraw…
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with breaking and entering with intent to commit a felony, but pursuant to plea bargain the charge was reduced to breaking and e…
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GRIMES, Judge.
Appellant was charged with breaking and entering with intent to commit a felony. Thereafter, pursuant to plea bargain, the State reduced his charge to breaking and entering with intent to commit a misdemeanor to which appellant entered a plea of nolo contendere. It was understood that there was to be a pre-sentence investigation, and if as a result the court concluded that probation could not be granted, appellant would be permitted to withdraw his plea. The pre-sentence investigation was evidently unfavorable because appellant was later sentenced to one year in the county jail work release program. Appellant now moves to vacate the judgment and sentence predicated upon a failure to honor the conditions of his plea bargain.
At no time on the trial level did appellant or his counsel object to the sentence. Nevertheless, this court has held that when the trial judge finds that he cannot conscientiously honor a plea bargain, he must affirmatively take action to permit the defendant the opportunity to withdraw his plea. Barker v. State, Fla. App.2d 1972, 259 So. 2d 200; accord, Brown v. State, Fla.1971, 245 So. 2d 41; Sanders v. State, Fla.App.2d 1972, 268 So. 2d 553. Consequently, we are constrained to vacate the judgment and sentence so as to permit the appellant the opportunity to withdraw his plea. Should he choose to do so, the State would be permitted to prosecute for breaking and entering with intent to commit a felony since the reduction of the charge was part of the bargain.
MANN, C. J., and McNULTY, J., concur.
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Kit Goins v. State, 672 So. 2d 30 (Fla. 1996)…GRIMES, Chief Justice. We review Goins v. State, 652 So. 2d 1283 (Fla. 1st DCA 1995), because of its conflict [*31] with Rodriguez v. State, 610 So. 2d 476 (Fla. 2d DCA 1992), Perry v. State, 510 So. 2d 1083 (Fla. 2d DCA 1987), and Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974). We have jurisdiction under article V, section 3(b)(3) of the Florida Constitution. The court below affirmed Goins’ convictions and sentences on the premise that he failed to move to withdraw his plea when the trial court imposed…
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Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)….1971, 245 So. 2d 41; Barker v. State, Fla.App.2d 1972, 259 So. 2d 200.. Accordingly, the judgments and sentences are hereby set aside and vacated to give appellant the opportunity to withdraw his guilty pleas. See Kiefer v. State, Fla.App.2d 1974, 295 So. 2d 688. GRIMES and SCHEB, JJ., concur.…
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Rayfield Moore v. State, 489 So. 2d 1215 (Fla. 2d DCA 1986)…v. State, 432 So. 2d 201 (Fla. 2d DCA 1983); Freeman v. State, 376 So. 2d 294 (Fla. 2d DCA 1979). The court has an affirmative duty to inform the defendant of that right. Dunkel; Reynolds v. State, 339 So. 2d 714 (Fla. 2d DCA 1976); Kiefer v. State, 295 So. 2d 688 (Fla. 2d DCA 1974). Although the court was not bound to follow the terms of the plea bargain, Moore v. State, 339 So. 2d 228 (Fla. 2d DCA 1976), it erred in failing to give appellant the opportunity to withdraw his plea once it decided not to impose…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 245 So. 2d 41 (Fla. 1971)
- Barker v. State, 259 So. 2d 200 (Fla. 2d DCA 1972)
- Hosie Sanders v. State, 268 So. 2d 553 (Fla. 2d DCA 1972)