Adler v. State, s. 79-134
| Decision Date | 22 April 1980 |
| Docket Number | 79-833,Nos. 79-134,s. 79-134 |
| Parties | Barry Scott ADLER, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack R. Blumenfeld, Moran & Gold and William M. Moran, Miami, for appellant.
Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
Before HUBBART and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
In these consolidated appeals, the defendant seeks reversal of the trial court's denial of his motions to: (1) withdraw his plea of guilty prior to imposition of sentence; 1 (2) vacate his guilty plea after adjudication and sentence; 2 and (3) disqualify the trial judge. 3 We affirm the trial court's rulings for the reasons presented.
A recitation of the chronology of the salient events is necessary to understand the defendant's position in the trial court. He was indicted on September 12, 1977 for: (1) murder in the first degree; (2) robbery; and (3) kidnapping, all committed against Robert Topping. Also indicted, as a co-defendant, was Andrew Schell. As the case progressed for trial, it became the subject of plea negotiations. Defendant's counsel sought and obtained a written confirmation of the agreement reached with the state regarding the plea negotiations. 4 On October 25, 1978, pursuant to the agreement, the defendant plead guilty to the above counts as modified. The court accepted the guilty plea and ordered a presentence investigation. The defendant was allowed to remain at large on bail pending sentencing. On November 13, 1978, the state confirmed by letter to defendant's counsel its understanding with respect to the sentencing of the defendant. 5 The sentencing phase was scheduled for January 8, 1979. On December 19, 1978, the defendant filed his motion to withdraw the plea of guilty prior to imposition of sentence. 6 An evidentiary hearing on the motion was conducted prior to sentencing following which the trial court denied the motion. After allowing the defendant his allocution rights, the court adjudicated and sentenced him for murder in the second degree and kidnapping and imposed consecutive ninety-nine year terms of imprisonment. No adjudication or sentence was imposed as to the robbery count. New counsel was substituted and filed the motion to withdraw the plea of guilty after adjudication. 7 A hearing thereon was scheduled before the original trial judge for April 6, 1979. On March 29, 1979, the motion to disqualify the trial judge 8 was filed. On the appointed date, the motions were summarily denied with the order denying the motion to vacate citing: "that no evidentiary hearing is appropriate or required."
Since the motion to disqualify the trial judge was not made within ten days prior to the hearing as required by Florida Rule of Criminal Procedure 3.230(c), and no good cause was shown for the failure to have timely filed the motion, it was properly denied. Skipper v. State, 114 Fla. 312, 153 So. 853, appeal dismissed 293 U.S. 517, 55 S.Ct. 76, 79 L.Ed. 631 (1934).
The arguments advanced here for a reversal of the motion to withdraw the guilty plea prior to imposition of sentence and the motion to withdraw the plea of guilty after adjudication and imposition of sentence are substantially alike and inter-related. In summary, the defendant contends: (1) his guilty plea was not freely and voluntarily entered because he intended to enter a plea of nolo contendere; (2) the trial court erred in accepting the guilty plea without making the inquiry required by Florida Rule of Criminal Procedure 3.172; (3) the state attorney failed to honor its agreement to make no recommendation regarding the length of defendant's sentence; and (4) good cause was shown for withdrawal of the guilty plea prior to imposition of sentence.
In resolving these matters, we are fully aware that a plea of guilty must be voluntarily and intelligently entered. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The record must affirmatively demonstrate the defendant understood the nature of the plea and the charges and that he was admitting guilt. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). A guilty plea must not be influenced by ignorance, mistake or unfilled inducements by the prosecution. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). The law favors a trial on the merits. Roberts v. State, 142 So.2d 152 (Fla. 3d DCA 1962). The withdrawal of a guilty plea will not be refused where it is the least evident that the ends of justice will be subserved by allowing a plea of not guilty to be entered in its place. Hill v. State, 110 So.2d 464 (Fla. 2d DCA 1959). A motion to withdraw a plea of guilty prior to imposition of sentence should be liberally construed in favor of the defendant. United States v. Klein, 560 F.2d 1236 (5th Cir. 1977), cert. denied 434 U.S. 1073, 98 S.Ct. 1259, 55 L.Ed.2d 777 (1978).
Withdrawal of a guilty plea is not a matter of right but of discretion and will not be set aside absent a showing of abuse. Meaton v. United States, 328 F.2d 379 (5th Cir. 1964), cert. denied 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965). The defendant must establish good cause for withdrawal of a guilty plea prior to imposition of sentence, Fla.R.Crim.P. 3.170(f); State v. Braverman, 348 So.2d 1183 (Fla. 3d DCA 1977), cert. denied 358 So.2d 128 (Fla.1978), and, after imposition of sentence, establish manifest injustice, Williams v. State, 316 So.2d 267 (Fla.1975).
Most of the defendant's contentions are dispelled by the plea colloquy which discloses the following:
The State is going to reduce Count I from first degree to second degree.
We have a letter which indicates the principal areas of our plea agreement. There are other matters that are not indicated in the agreement. However, they do not affect the plea.
Mr. Adler will enter a plea of no contest to the reduced charge in Count I; as charged, Count II, as charged, Count III.
Do you want to do that?
Do you understand that?
You are giving up your right to take the stand at the trial in your own behalf, or not take the stand and have the jury instructed that they are not to hold that against you in any way.
Do you understand that by pleading guilty you are giving up all those rights?
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