Brown v. State, 90-3326

Decision Date07 August 1991
Docket NumberNo. 90-3326,90-3326
Citation585 So.2d 350
PartiesClifton Reader BROWN, Appellant, v. STATE of Florida, Appellee. 585 So.2d 350, 16 Fla. L. Week. D2036
CourtFlorida District Court of Appeals

Richard L. Jorandby, Public Defender, and Paul E. Petillo, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sylvia H. Alonso, Asst. Atty. Gen., West Palm Beach, for appellee.

HERSEY, Judge.

Appellant, Clifton Reader Brown, appeals his conviction and sentences for robbery with a deadly weapon, attempted murder in the second degree and grand theft entered after an open plea of guilty. The dispositive issue on appeal is whether the guilty plea was supported by an adequate inquiry. We find it was not and reverse.

Subsequent to the selection of but prior to the swearing in of a jury, the trial court held a hearing on appellant's pretrial motions. After the court denied these motions, appellant requested the court to entertain an open plea. After having an informal plea colloquy with his attorney and a formal one with the trial judge, appellant changed his plea and entered pleas of guilty to all three counts. The trial court found these guilty pleas to be freely and voluntarily entered, deferred sentence and adjudication to November 20, 1990, and ordered a presentence investigation.

Prior to the date set for sentencing, appellant filed a pro se motion to withdraw his pleas of guilty. After inquiring into appellant's reasons, the trial court denied appellant's motion to withdraw.

On November 6, 1990, appellee filed a Notice to Declare Defendant an Habitual Violent Felony Offender. At the sentencing hearing, the trial court found appellant to be an habitual (non-violent) felony offender and sentenced him as follows: (1) robbery with a deadly weapon--life imprisonment, (2) attempted second degree murder--life imprisonment, and (3) grand theft--ten years imprisonment, with all sentences to run concurrently.

Counsel for appellant thereafter moved for reconsideration and/or mitigation of appellant's sentence after learning from the Department of Corrections that a life sentence in non-capital cases such as this is a life sentence without the possibility of release or review by a parole commission (short of executive clemency). At the hearing, appellant's counsel reminded the trial judge that at the time of sentencing the judge had indicated he would not sentence appellant to the maximum provided by law, and argued that in fact appellant had been given the maximum sentence, i.e., a life sentence without the possibility of release or review by a parole board.

Appellee argued that (1) a trial court has no discretion in sentencing habitual felony offenders for first degree felonies [court must sentence to life imprisonment], (2) the trial judge did not impose the maximum sentence provided by law because (a) consecutive life sentences might have a bearing on appellant's eligibility for executive clemency and (b) the trial court could have found appellant to be an habitual violent felony offender; and finally, (3) in order to resentence appellant at this stage the trial court would have to discard its habitual offender determination regarding the robbery with a deadly weapon and attempted second degree murder counts, and sentence appellant according to the guidelines.

The trial court denied appellant's motion to reconsider and/or mitigate his sentence, finding that it had not sentenced appellant to the maximum because: (1) it did not declare appellant to be an habitual violent felony offender; and, (2) it did not sentence appellant to consecutive life terms. This appeal followed.

Initially, appellant argues that during the plea colloquy, the trial court did not determine that appellant understood what the maximum penalties were. Appellant further argues that he was misinformed as to the maximum penalties because the Acknowledgment of Plea and Waiver of Rights Form incorrectly reflects a maximum penalty of thirty years imprisonment and five years imprisonment for the attempted murder and grand theft counts, respectively, instead of correctly reflecting life imprisonment and ten years imprisonment, respectively, under the habitual felony offender statute. [Appellant was given the maximum sentence under the statute on these counts.] Finally, appellant points to the post-sentencing hearing on appellant's motion to reconsider and/or mitigate sentence, which revealed that all parties were ignorant of the fact that a life sentence for a non-capital offense meant life in prison without any possibility of release short of executive clemency.

Appellee, on the other hand, argues that there was no error because the trial court determined that appellant understood the consequences of entering an "open" plea and, given the absence of a plea bargain or assurance of a particular sentence in this case, the trial court continually emphasized that it was not bound to impose a certain sentence. In support of its position, appellee relies on portions of the change of plea hearing together with language from the Acknowledgment of Plea and Waiver of Rights Form to conclude that "the record refutes appellant's claim that he was not aware of the maximum penalty to which he was subjecting himself by pleading 'open' to the court." Appellee argues that the focus should be on what transpired at the time appellant entered his plea, not what occurred subsequent thereto after the time appellant was sentenced, and notes that appellant sought to withdraw his plea prior to, rather than subsequent to, the imposition of sentence. Finally, appellee argues that the fact that a life sentence means a life sentence without the possibility of parole is not a direct consequence of appellant's guilty plea, but rather, is a collateral consequence of which the trial court need not advise appellant.

Appellee's argument that the fact that a life sentence under the habitual offender statute means a life sentence without the possibility of parole is not a direct consequence, but rather a collateral consequence, of appellant's guilty plea is without merit. In Zambuto v. State, 413 So.2d 461 (Fla. 4th DCA 1982), this court stated that whether a consequence of a plea is direct or collateral "turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." Id. at 462 (citations omitted). As appellant indicates, the fact that he was sentenced to life in prison without possibility of parole and hence will not be released from prison obviously has a definite, immediate and automatic effect on the range of his punishment and is therefore a direct consequence of the plea.

Regardless of the parties' characterization of the trial court's actions in accepting appellant's plea, the essential issue is whether the trial court erred in accepting appellant's plea. Thus, the critical question is whether the trial court carried out its responsibility as mandated by rule 3.172(c)(i), Florida Rules of Criminal Procedure, in accepting appellant's guilty pleas. This rule states:

(c) [T]he trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he understands the following:

(i) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

(Emphasis added.)

Appellee relies on the fact that the record "is replete with appellant's assurance that he understood the consequences of entering an 'open' plea," (not made pursuant to any plea bargain or assurance of sentence), that the trial court continually emphasized that it was not bound to impose a certain sentence, and finally, that appellant was advised that the trial court could choose either to sentence appellant under the sentencing guidelines to a maximum of twenty-two years incarceration, or to sentence appellant as a habitual offender or habitual violent offender outside of the sentencing guidelines. Appellee also points to language in the Acknowledgment of Plea Form signed by appellant that states, "I understand that if the court accepts my plea to these charges, my sentence will be an open plea to the court."

Appellee relies on Homer v. State, 553 So.2d 781 (Fla. 4th DCA 1989); State v. Smith, 507 So.2d 1209 (Fla. 4th DCA 1987); and State v. Wilson, 395 So.2d 520 (Fla.1981).

In Homer, this court held that a defendant was not entitled to withdraw his open plea of guilty because the plea was not negotiated based on any promises, nor was the defendant assured of any particular sentence.

In Smith, this court held, after determining that the trial court erred in departing below the recommended guidelines sentence, that the defendant was not entitled to withdraw his plea where the defendant pleaded "open" and there was no plea bargain, thus no reason, to permit withdrawal of the plea.

In Wilson, the supreme court held that rule 3.172(c)(i), Florida Rules of Criminal Procedure, requiring the trial court to advise a defendant of the mandatory minimum sentence for a crime to which he had pled guilty, was satisfied where the...

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7 cases
  • Wagner v. State, 5D03-756.
    • United States
    • Florida District Court of Appeals
    • 4 Febrero 2005
    ...agreement with the state, and the defendant is given no assurance of what sentence he will receive when sentenced. See Brown v. State, 585 So.2d 350 (Fla. 4th DCA 1991). When a defendant enters an open plea, he or she indicates "a willingness to accept anything up to and including the maxim......
  • Johnson v. State, 4D08-3531.
    • United States
    • Florida District Court of Appeals
    • 11 Marzo 2009
    ...Lewis v. State, 625 So.2d 102, 103 (Fla. 1st DCA 1993) and recognizing there is no parole from a life sentence); Brown v. State, 585 So.2d 350 (Fla. 4th DCA 1991); Burdick v. State, 584 So.2d 1035, 1038-39 (Fla. 1st DCA 1991), quashed in part on other grounds, 594 So.2d 267 On direct appeal......
  • Ashley v. State, 90-2500
    • United States
    • Florida District Court of Appeals
    • 29 Noviembre 1991
    ...461, 462 (Fla. 4th DCA 1982). Hence, there was no concomitant duty to serve notice prior to entry of the plea. Compare Brown v. State, 585 So.2d 350 (Fla. 4th DCA 1991). We certify conflict with the second district opinion Inmon, supra, in regard to this As an additional basis for affirmanc......
  • Stephenson v. State, 3D14–1657.
    • United States
    • Florida District Court of Appeals
    • 15 Junio 2016
    ...with this opinion.1 An open plea is a plea not made pursuant to any plea bargain or assurance of sentence. See Brown v. State, 585 So.2d 350, 352 (Fla. 4th DCA 1991).2 Chapter 2014–220, Laws of Florida, inter alia, creates: (a) section 775.082(3)(c) of the Florida Statutes that requires, am......
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