Brushingham v. State, 83-2398
| Decision Date | 12 December 1984 |
| Docket Number | No. 83-2398,83-2398 |
| Citation | 460 So.2d 523 |
| Parties | David N. BRUSHINGHAM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and James P. McLane and Carolyn V. McCann, Asst. Attys. Gen., West Palm Beach, for appellee.
This is an appeal from an order revoking probation and subsequent sentence.
Appellant raises two points. He first contends that the trial court erred in finding that he knowingly, intelligently, and voluntarily entered into a guilty plea based on a plea agreement for probation. The agreement included appellant's making restitution payments within a six month period as a condition of probation and provided that appellant waived the requirement that the state establish his financial ability to make restitution in order to prove violation of probation for failure to make restitution payments. Appellant further contends that such an agreement is unenforceable as against public policy, and thus that even if he failed to make the agreed restitution, it was error to revoke his probation. Appellant does not contest that the required restitution was not made, nor does he contend that failure to make restitution was not a sufficient reason to revoke his probation.
We deal with the second point first and note that this court has already spoken to a similar issue in the case of Doherty v. State, 448 So.2d 624 (Fla. 4th DCA 1984). Based on the reasoning of Doherty we conclude that a person charged with a crime can legally enter into a plea bargain agreement with the state that he receive probation rather than be imprisoned on conditions that he make restitution within a set period of time and that he waive his right to be imprisoned for failure to pay a debt if he fails to make restitution as he has agreed, whether or not the state can prove his financial ability to make restitution. Such an agreement is not void as against public policy and is enforceable.
We next deal with whether appellant sufficiently understood and legally entered into the agreement. In this case the record clearly supports the trial court's conclusion of a knowing, intelligent, and voluntary entry of guilty plea and waiver by defendant of his right against imprisonment for failure to pay restitution. At the time appellant was placed on...
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...at 395-96, 699 P.2d at 578-79; State v. Walding, 477 S.W.2d 251 (Tenn.Cr.App.1971). We therefore disagree with Brushingham v. State, 460 So.2d 523 (Fla. 4th DCA 1984), 3 upon which the trial court understandably relied below. We find the Brushingham holding that the constitutional prohibiti......
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Dirico v. State, 97-3774
...upon by the appellant, who requested the court to accept it. Id. at 625. Later that same year, this court decided Brushingham v. State, 460 So.2d 523 (Fla. 4th DCA 1984). In that case, Brushingham had entered into a plea agreement which provided that he would be sentenced to probation. The ......
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Stephens v. State
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