LESLIE SLAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a significant delay between a nolo contendere plea and sentencing, without offering the defendant an opportunity to withdraw the plea, violates due process.
[1] A trial court errs by suspending imposition of sentence for an extended period without placing the defendant on probation under the supervision of the Department of Offen…
[2] When a trial court deviates from a plea bargain by imposing a sentence contrary to the agreed-upon terms, it must affirmatively offer the defendant an opportunity to with…
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Join FLexlaw to unlock all legal intelligenceThe defendant pled nolo contendere to aggravated assault with an agreement for probation. Eleven months later, the trial court sentenced him to impris…
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RAWLS, Acting Chief Judge.
Slay was charged by a two-count information with aggravated assault and sexual battery.1
The record clearly reveals that Slay withdrew his plea of not guilty and pled nolo contendere to the aggravated-assault count pursuant to a plea arrangement whereby he was to be placed on probation. The trial court accepted the terms of the plea arrangement, cautioned Slay on the consequences of probation violations, and then announced that sentencing would be set for a later date. Slay, who was then in jail for contempt of a child support decree, was released on his own recognizance with the trial court’s admonition that he would be returned to jail if he failed to support his children.
Eleven months later, Slay went before the trial court for sentencing. After discussing Slay’s alleged drinking problems and his continuing failure to support his children, the trial court, without affirmatively offering Slay an opportunity to withdraw his plea of nolo contendere, adjudged him guilty of aggravated assault and sentenced him to 30 months imprisonment.2 Slay argues that the 11-month delay between his plea and the imposition of sentence constituted a denial of due process, and that the trial court erred in failing to affirmatively offer him an opportunity to withdraw his negotiated plea prior to the imposition of sentence. We agree and reverse.
When a defendant is adjudged guilty of a criminal offense, the trial court should either sentence him or place him on probation.3 However, when the trial court elects to suspend imposition of sentence upon a defendant, it must place him on probation under the supervision and control of the Florida Department of Offender Rehabilitation.4 Thus, it was error for the trial court to suspend imposition of sentence for a period of eleven months without placing Slay on probation pursuant to Chapter 948, Florida Statutes.
Slay’s plea of nolo contendere to aggravated assault was pursuant to a plea bargain whereby the state recommended that he be placed on probation. This agreement was concurred in by the trial court. Having later reached the contrary determination that incarceration was appropriate, the trial court should have affirmatively offered Slay an opportunity to withdraw his plea prior to the imposition of sentence.5
Reversed and remanded with directions that either the trial court impose probation in accordance with the plea bargain or vacate the judgment and offer appellant an opportunity to withdraw his nolo conten-dere plea.
SMITH and ERVIN, JJ., concur. . The sexual battery count was later nolle prossed.
. In announcing sentence, the trial court stated: “. . . [Although he was not on a supervised probation under sentence of probation, he was definitely in a probationary status as far as the court is concerned.” The trial court went on to say: “. . . [I]t would be the court’s position that he was out on a probationary status and that he has definitely violated that."
.There may be justifiable delay in either sentencing or placing a convicted individual on probation for procedural reasons such as the determination of motions and other matters arising between verdict and judgment, or for the purpose of gaining information necessary to the imposition of a just sentence, or during the pendency of other charges, or for other good and valid reasons. Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958), cert. disch. 110 So. 2d 7 (Fla.1959). See also Helton v. State, 106 So. 2d 79 (Fla.1958).
. Sec. 948.01(5), Fla.Stat. (1975), provides: “(5) In no case shall the imposition of sentence be suspended and the defendant thereupon placed on probation unless such defendant be placed under the custody of said [department].”
. Fla.R.Crim.P. 3.171(c); Thomas v. State, 327 So. 2d 63 (Fla. 1st DCA 1976); and Adams v. State, 328 So. 2d 48 (Fla. 1st DCA 1976). accident or with respect to any injury to person or property shall, at the time of taking such statement, furnish to the person making such statement a true and complete copy thereof. Any person having taken, or having possession of any written statement or a copy of such statement, by any injured person with respect to any accident or with respect to any injury to person or property shall, at the request of the person who made such statement or his personal representative, furnish the person who made such statement or his personal representative a true and complete copy thereof. No written statement by an injured person shall be admissible in evidence or otherwise used in any manner in any civil action relating to the subject matter thereof unless it shall be made to appear that a true and complete copy thereof was furnished to the person making such statement at the time of the making thereof, or, if it shall be made to appear that thereafter a person having possession of such statement refused, upon request of the person who made the statement or his personal representatives to furnish him a true and complete copy thereof. (Emphasis added).
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Logan Finney v. State, 420 So. 2d 639 (Fla. 3d DCA 1982)…1132 (Fla. 1st DCA 1979); Segarra v. State, 360 So. 2d 79 (Fla. 3d DCA 1978) rev’d on other grounds, 388 So. 2d 1017 (Fla.1980); State ex rel. Wilhoit v. Wells, 356 So. 2d 817 (Fla. 1st DCA), cert. denied, 359 So. 2d 1222 (Fla.1978); Slay v. State, 347 So. 2d 730 (Fla. 1st DCA 1977); Reynolds v. State, 339 So. 2d 714 (Fla. 2d DCA 1976); Fla.R.Crim.P. 3.172(g). Florida Rule of Appellate Procedure 9.140(f) states: “In the interest of justice, the court may grant any relief to which any party is entitled.” In…
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Shirmon v. State, 362 So. 2d 478 (Fla. 1st DCA 1978)…reflect a pronouncement of sentence for the offense of attempted grand larceny. This is improper. Helton v. State, 106 So. 2d 79 (Fla.1958); Bateh v. State, 101 So. 2d 869 (Fla. 1st D.C.A. 1958), cert. disch. 110 So. 2d 7 (Fla.1959); Slay v. State, 347 So. 2d 730 (Fla. 1st D.C.A. 1977). Accordingly, the judgment and sentence are reversed and the cause remanded for the imposition of a proper sentence. McCORD, C. J., and MILLS and BOYER, JJ., concur.…
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Woodland v. Honorable Hubert R. Lindsey, 586 So. 2d 1255 (Fla. 4th DCA 1991)…itious sentencing but as the state maintains, there is no “speedy sentencing” rule. However, sentencing should be delayed for only justifiable reasons such as determination of motions, the gathering of sentencing information, etc. See Slay v. State, 347 So. 2d 730, 731 n. 3 (Fla. 1st DCA 1977). Sentencing should not be delayed until every case against a particular defendant is ready for sentencing. Clark v. State, 572 So. 2d 1387 (Fla.1991). If this were merely a short delay in sentencing, the granting of man…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mussa C. Bateh, 110 So. 2d 7 (Fla. 1959)
- Mussa C. Bateh v. State, 101 So. 2d 869 (Fla. 1st DCA 1958)
- Helton v. State, 106 So. 2d 79 (Fla. 1958)
- Adams v. State, 328 So. 2d 48 (Fla. 1st DCA 1976)
- Thomas v. State, 327 So. 2d 63 (Fla. 1st DCA 1976)