Dolan v. State, 92-03491
| Decision Date | 31 March 1993 |
| Docket Number | No. 92-03491,92-03491 |
| Citation | 618 So.2d 271 |
| Parties | 18 Fla. L. Week. D887 Gary DOLAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gary Dolan, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ron Napolitano, Asst. Atty. Gen., Tampa, for appellee.
Kurt E. Ahrendt, Asst. Gen. Counsel, Tallahassee, for amicus curiae FL Parole Com'n.
Gary Dolan appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
Numerous issues are raised in the motion, but only one merits extended comment. Dolan entered a plea of guilty to several felony charges. He now seeks to withdraw that plea, claiming it was made without a full understanding of the consequences and that it was influenced by the belief he would be eligible for parole.
Apparently one or more plea bargains were discussed in the months preceding Dolan's plea, but all were rescinded and Dolan finally entered an "open plea." The parties were aware that Dolan's extensive prior record and the seriousness of the charges resulted in a recommended sentence of life under sentencing guidelines. Defense counsel informed the court he would argue in support of a downward departure sentence. However, Dolan acknowledged there was no binding agreement as to the length of sentence, and the court cautioned Dolan that he could receive "a lifetime incarceration in the Department of Corrections."
Following the plea colloquy the trial court inquired about the possibility of parole if Dolan were sentenced to life. This may have been prompted by concern that Dolan, despite many aggravating circumstances surrounding his case, deserved some consideration for having provided assistance in other criminal prosecutions. Defense counsel responded that prior to the adoption of sentencing guidelines, one might expect parole after ten years if a life prisoner "caused no trouble," but under guidelines "he's not eligible for parole." That is, "life means life." However, counsel went on to state that such a prediction was "[not] realistic" because such a sentence was worse than a capital life sentence. The court agreed that "[l]ife under the guidelines presumably meant life," but thought "some sort of parole release date" might nevertheless exist. The court described a case wherein another judge had imposed a 99-year sentence so that the defendant could receive gain time; ironically, that defendant complained and demanded a life sentence. "I felt he must have learned something in the jail system that gave him hope that under a guideline sentence of life he'd get out sooner." Eventually the court did impose a life sentence, but expressed its belief Dolan would be eligible for parole.
In fact, the speculation by counsel and the trial court appears to have been incorrect. In his lucid and informative amicus curiae brief, counsel for the Florida Parole Commission has explored the significance of a life sentence under guidelines. For anyone convicted of a non-capital felony committed on or after October 1, 1983, the term "parole" no longer exists. See Sec. 921.001(8), Fla.Stat. (1983). Capital felons are still parole-eligible as they are not sentenced under section 921.001. Gresham v. State, 506 So.2d 41 (Fla. 2d DCA 1987).
At first blush, it may seem an anomaly that the most serious type of offender--the capital felon--would be eligible for early release on parole, whereas those committing less serious life felonies, or even first degree felonies, are subject to 'true life sentences' without eligibility for parole. However, the sentencing guidelines factor in more than just the seriousness of the crime. The defendant's prior criminal record, additional offenses at conviction, and legal status at the time of offense determine the sentence imposed under the sentencing guidelines. If an inmate's criminal record is so bad as to score life under the sentencing guidelines, the argument can be made that he probably deserves a true life sentence.
Brief of amicus curiae, 6-7.
However, in 1990 the Florida Parole Commission implemented the "Control Release Program," which is governed by section 947.146, Florida Statutes (1991). Section 921.001(1) was amended to recognize control release as one of the few authorized opportunities of early release for a prisoner sentenced under guidelines. The purpose of the control release program, which is directed solely to inmates who are not eligible for parole, is to alleviate prison overcrowding.
Not all guideline-sentence prisoners can be considered for control release; the statute excludes, among others, those serving minimum mandatory sentences, sex offenders, habitual felony offenders, and those convicted of certain violent felonies. Dolan, by virtue of a conviction for attempted second degree murder, appears to be ineligible. Section 947.146(4)(i). That is, for the time being and discounting truly exceptional developments such as executive clemency, Dolan may reasonably expect to pass out his days in the custody of the Department of Corrections. However, as noted by counsel for the Commission, such provisions "are, of course, subject to legislative amendment, and may be expanded or restricted in the future." 1
The voluntariness of Dolan's plea is not undermined simply by the fact neither defense counsel nor the judge was absolutely certain whether Dolan would be eligible for parole.
Neither the trial court nor counsel is required to forewarn a...
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