LARRY P. SUMMERLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant challenged his conviction and sentencing where he entered a plea of nolo contendere to robbery with a firearm. The court found confusion regarding whether the firearm allegation was included in the plea, and determined that the plea was not voluntarily entered due to this ambiguity, requiring the trial court to allow him to withdraw it.
The court held that the defendant's plea of nolo contendere was not voluntarily entered due to the prevailing confusion regarding what charges the plea covered, and therefore the judgment and sentence were set aside with directions to allow the defendant to withdraw his plea.
[1] A plea of nolo contendere is not voluntarily entered when the defendant is under the impression that they are pleading to a lesser offense and the state later insists on…
[2] A trial court may correct an illegal sentence pursuant to Fla. …
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Join FLexlaw to unlock all legal intelligence“The court and appellant's counsel were clearly of the impression that appellant was pleading to the lesser offense of robbery and that the state either had abandoned or was unable to prove the firearm violation.”
Establishes the confusion regarding what charges were actually covered by the plea
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Join FLexlaw to unlock all legal intelligenceOn June 28, 1977, an information charged Summerlin and a co-defendant with robbery committed on April 3, 1977, alleging they carried a firearm. Summer…
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OTT, Judge.
On June 28, 1977 an information charged that appellant and a co-defendant committed a robbery on April 3, 1977, during the course of which “the said (co-defendant and appellant) did carry a deadly weapon, to wit: A FIREARM.”
Appellant entered a plea of not guilty. On August 15, 1977 another plea hearing was held with an assistant state attorney and counsel for the appellant present. Appellant’s plea was changed to nolo conten-dere. Sentence was deferred pending receipt and review of a pre-sentence investigation.
On October 7, 1977 the co-defendant and appellant came before the court for sentencing. The court announced its intention to withhold adjudication and place the co-defendant and appellant on probation. The assistant state attorney objected on the grounds that a mandatory three year sentence was required pursuant to Section 775.087(2), Florida Statutes (1976). After considerable colloquy between the court, the assistant state attorney and appellant’s counsel the hearing was continued for several hours and then resumed later the same day. The court and appellant’s counsel were clearly of the impression that appellant was pleading to the lesser offense of robbery and that the state either had abandoned or was unable to prove the firearm violation. The state insisted that the plea of nolo contendere having been accepted there was no alternative for the court but to enter the mandatory three year sentence. At the conclusion of the hearing the court, over the state’s objection, announced that it was either striking or dismissing that portion of the information dealing with a firearm violation. The trial court entered its order withholding adjudication and placing appellant on probation for a period of two years.
Thereafter, the state filed a motion for correction of the sentence pursuant to Fla. R.Crim.P. 3.800. After a hearing on this motion the court granted the state’s motion and imposed the mandatory three year sentence. Under the prevailing confusion we hold that the appellant’s change of plea was not voluntarily entered and we, therefore, set aside the judgment and sentence and remand with directions that the court afford the appellant the opportunity to withdraw his plea of nolo contendere.
BOARDMAN, Acting C. J., and DAN-AHY, J., concur.
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Kiehl v. State, 363 So. 2d 1100 (Fla. 2d DCA 1978)…ant to three years in prison with credit for time served. Appellant raises a number of points questioning the propriety of his three-year sentence. Without discussing these points individually, we hold this case is controlled by Summerlin v. State, 360 So. 2d 805 (Fla.2d DCA 1978). We reverse on its authority. Summerlin v. State was the appeal of appellant’s codefendant, Larry Summerlin. The trial court had likewise withdrawn Summerlin’s order of probation and sentenced him to three-years imprisonment. Jud…