Barlow v. State, 4D99-4291.

• Decision Date: 14 March 2001
• Docket Number: No. 4D99-4291.,4D99-4291.
• Citation: 784 So.2d 482
• Parties: Jeffrey S. BARLOW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

784 So.2d 482

Jeffrey S. BARLOW, Appellant, v. STATE of Florida, Appellee.

No. 4D99-4291.

District Court of Appeal of Florida, Fourth District.

March 14, 2001.

Pat Coughlin, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.

KLEIN, J.

Appellant moved to withdraw his plea within thirty days of sentencing, alleging that his plea colloquy did not comply with Florida Rule of Criminal Procedure 3.172(c). The trial court denied the motion because the court found, based on the testimony of counsel representing appellant at the time of the plea, that there was no prejudice. We affirm.

The charges against appellant, which arose out of an accident, were DUI enhanced due to serious bodily injury and leaving the scene of an accident involving injury. At the time appellant was on probation imposed in 1988 for drug trafficking. On the day the case was set for trial, after being continued several times, counsel for both sides advised the court that they thought the case could be resolved without a trial. After a one hour adjournment for the parties to discuss a plea, appellant was sworn, and a brief colloquy occurred, in which appellant acknowledged his understanding of the charges, his right to a trial, and that his counsel had fully explained everything to him.

The state then recited a factual basis for the charges as well as the probation violation case, and the court advised the parties that before sentencing it would hear evidence at an allocution¹ hearing. In response to an inquiry by the court, appellant acknowledged the factual basis for both the charges and the probation violation, and that he was entering his plea freely and voluntarily. The court did not go through all of the formalities of rule 3.172(c), which the rule states that a trial court "should" do, in order to ensure that a plea is voluntary. At the allocution hearing, at which appellant was present, appellant's counsel pointed out that the state, the appellant, appellant's family, law enforcement personnel, and the victim all had agreed that appellant should be sentenced to either 364 days in jail or 366 days in prison, followed by four years probation with conditions. Counsel suggested that the court defer to the agreement, but recognized that the court was not bound by it.

The court imposed the sentence recommended by the pre-sentence investigation report, six years incarceration on the new charges and three and a half years on the probation violation, to be concurrent. No objection was raised.

Thirty days after sentencing, appellant, represented by new counsel, moved to withdraw his plea, asserting that he was not affirmatively informed that he had a right to plead not guilty, to compel attendance of witnesses, to confront and crossexamine witness against him, and to avoid self-incrimination. Appellant further claimed that he had an express plea agreement with the state that induced him to enter the plea which was violated when his sentence was inconsistent with the agreement. In addition, appellant claimed that he was not aware that he had the right to withdraw his plea when the court departed from the agreed sentencing recommendation, nor was he aware of any mandatory minimum or the maximum possible sentence. Finally, he asserted that neither discussions with counsel nor the signing of a plea form were sufficient to evidence a knowing and voluntary plea.

The authority for the motion was rule 3.170(l), which provides:

Motion to Withdraw the Plea After Sentencing. A defendant who pleads guilty or nolo contendre without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(B)(i)-(v).

The ground of the motion, that the plea was involuntary, is a ground specified in Florida Rule of Appellate Procedure 9.140(b)(2)(B)(iii). Unlike a motion for post-conviction relief filed pursuant to rule 3.850, there is no requirement in rule 3.170(l) that the motion be under oath, and this motion was not.

At the evidentiary hearing on appellant's motion, he put on no evidence. Appellant's position was that his motion was based entirely on the record of the plea colloquy and the fact that it did not comply with the requirements of rule 3.172(c).

The state called appellant's former counsel, attorney Phillip Carlton, who had represented defendant at the plea conference. Carlton, an experienced criminal defense lawyer, testified that he had advised appellant "of the possible extent of sentence that could be imposed." He also explained that he had provided appellant with the permitted and recommended sentences contained in the presentence investigation report. The appellant and Carlton had also signed a plea sheet, which outlined the rights that the appellant was giving up by entering his guilty pleas, on the day of the plea conference, and the sheet was admitted in evidence. Appellant did not put on any rebuttal evidence.² Rule 3.172(c) provides that a "trial judge should, when...