Abney v. State, 96-1309

• Decision Date: 10 January 1997
• Docket Number: No. 96-1309,96-1309
• Parties: 22 Fla. L. Weekly D174 Otha Lee ABNEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1027

685 So.2d 1027

22 Fla. L. Weekly D174

Otha Lee ABNEY, Appellant, v. STATE of Florida, Appellee.

No. 96-1309.

District Court of Appeal of Florida,

Fifth District.

Jan. 10, 1997.

James B. Gibson, Public Defender, and M.A. Lucas, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, and Michael D. Crotty, Assistant Attorney General, Daytona Beach, for Appellee.

ANTOON, Judge.

The defendant appeals his judgment and sentence which were imposed following his plea of nolo contendere to the charges of aggravated assault with a deadly weapon, battery, and violating an injunction against domestic violence. We lack jurisdiction to review this appeal, and therefore, the appeal must be dismissed.

The charges against the defendant arose out of a domestic dispute during which the defendant accosted the victim with a hammer when she arrived to pick up her children at the babysitter's house. He entered a plea of nolo contendere to all charges. The transcript of the hearing reveals that defense counsel described the terms of the negotiated plea as follows:

Your honor, at this time [the defendant] would be withdrawing his previously tendered pleas of not guilty and entering pleas of no contest as charged to Counts I through III. In exchange for that plea, the State Attorney's Office is recommending Orange County Jail time as promised by the Court. The Court will sentence [the defendant] to a period of time in the Orange County Jail with no objection to work release, unless there is contact with the victim in this case ... between now and the time of the sentencing.... In the event that there is contact, then [the defendant] will be sentenced to Department of Corrections time.

The trial court asked the defendant if he understood the terms of the agreement and the defendant responded, "Yes, sir, I do." The trial court then accepted the defendant's plea and set the matter for sentencing. The written plea agreement signed by the defendant provided: "OCJ" time, and that the judge "has promised ... OCJ time ... unless contact, then DOC."

Two months later, the defendant appeared for sentencing. The defendant's sentencing guidelines scoresheet indicated a range of 10.4 to 16.7 months in state prison. At the hearing, evidence was submitted which established that one week after entering his plea the defendant accosted the victim with a gun while she was dropping her daughter off at school. The victim stated that he shot the gun at her car as she sped away from him. Upon review of this testimony, the trial court imposed a departure sentence, sentencing the defendant to a term of 24 months imprisonment. In so ruling, the court explained that the departure was based upon the fact that the defendant had attacked the victim in the presence of one or more members of her family. ¹

The defendant now argues that his judgment and sentence must be vacated and this matter remanded to the trial court so that he can withdraw his nolo contendere plea because the trial court improperly sentenced him outside the terms of his plea agreement without first offering him the right to withdraw his plea. This argument lacks merit.

Section 924.06(3) of the Florida Statutes (1995), provides that a defendant who enters a plea of nolo contendere without specifically reserving the right to file a direct appeal waives his right to appeal all matters relating to the judgment except certain appealable issues which may occur contemporaneous with the entry of the plea. In construing this statute, our court has ruled that a defendant waives his right to directly appeal his judgment unless he first files a motion to withdraw his plea with the trial court and that motion is denied. See Skinner v....