Gamble v. State, 82-1119
| Decision Date | 29 March 1984 |
| Docket Number | No. 82-1119,82-1119 |
| Citation | 449 So.2d 319 |
| Parties | Connie Sue GAMBLE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
In this appeal from a judgment of conviction and sentence, appellant contends that the court did not honor the plea agreement by virtue of which she changed her original plea of "not guilty" and pleaded "guilty" instead. We reverse.
The agreement with the State for appellant's plea was that on one count she would be sentenced to time served, and on the other count adjudication of guilt would be withheld and she would be placed on probation, one condition of which would be that she would serve fifty-one weeks in the county jail. The trial court accepted the plea based on these negotiations, subject only to appellant's cooperation with the State as agreed, and to receipt of a presentence investigation. No other conditions were suggested by the court nor made a part of the plea bargain. There is no contention that defendant violated any of the stated conditions--only that she did not appear for sentencing, which clearly was not a condition upon which the plea was accepted. Appellant failed to appear at the appointed time for her sentencing and when later apprehended and brought to sentencing, her counsel asked the court to recall the plea discussions. The trial court replied, "I do, and they also called for her to appear in court for sentencing, which she refused to do" and, thereupon, appellant was adjudicated guilty and sentenced to two concurrent five-year prison terms.
We must first determine if we have jurisdiction to consider this appeal because of the provisions of Florida Rule of Appellate Procedure 9.140(b), which provides that a defendant may not appeal from a judgment entered on a plea of guilty. See also, Fla.R.Crim.P. 3.172(c)(iv) and § 924.06(3), Fla.Stat. (1981).
In Robinson v. State, 373 So.2d 898 (Fla.1979), the supreme court held that:
... There is an exclusive and limited class of issues which occur contemporaneously with the entry of the plea that may be the proper subject of an appeal. To our knowledge, they would include only the following: (1) the subject matter jurisdiction, (2) the illegality of the sentence, (3) the failure of the government to abide by the plea agreement, and (4) the voluntary and intelligent character of the plea....
In Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979), the court held that where it was contended that the plea was not voluntarily or intelligently made, the adjudication could not be appealed, but the defendant must first file a motion in the trial court to withdraw the plea, following which an appeal could be taken from an adverse ruling on the motion. This court has agreed with the rationale of Counts, and has dismissed appeals taken from both guilty pleas and pleas of nolo contendere. See, e.g., Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982); Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).
In Counts, the court found that the only appealable issue which might apply was the question of the voluntary and intelligent character of the plea. This is one of the four issues which Robinson recognizes as subject to review following a guilty plea. The Counts court held, and we agree, that where the issue is the voluntary and intelligent character of the plea,
[T]he purposes of requiring a motion to withdraw the guilty plea as a prerequisite to an appeal are obvious. This procedure enables the trial judge to pass on any points raised and establishes a record on which an appellate court may base an informed and reasoned disposition of the appeal. Were it not for this record of the motion hearing, the only evidence of voluntariness in the vast majority of appeals would be the colloquy between the trial judge and the defendant. In most instances, therefore, the appellate court would not have a sufficient basis to render an informed decision on the issue of voluntariness. By requiring the defendant to make a prior motion to withdraw, however, the question of voluntariness will first be put to the trial court which can conduct an evidentiary hearing, and, if necessary, entertain collateral evidence in support of the defendant's position. If a trial court rules against the defendant on the motion to withdraw, that decision may be challenged upon appeal from the judgment and sentence.
The absence of an adequate record when the issue is the voluntary and intelligent nature of the plea is not the problem here. In this case, the record of the plea bargain is clear, as is the trial court's acceptance of it upon the conditions mentioned. No condition was imposed on acceptance that appellant be present for sentencing or "all bets are off." The trial court's recollection that such a condition was imposed is not supported by the transcript of the plea hearing. Thus this case is distinguishable from the recent case of Parker v. State, 446 So.2d 250 (Fla. 5th DCA 1984) where the condition that defendant appear for sentencing was clearly imposed on and accepted by defendant as part of the plea bargain.
The acceptance of a tendered guilty plea places the accused in jeopardy and prohibits the vacating of that plea without legal cause. Reyes v. Kelly, 224 So.2d 303 (Fla.1969), cert. denied, 397 U.S. 958, 90 S.Ct. 961, 25 L.Ed.2d 142 (1970). Although jeopardy has attached, if the plea is accepted conditionally and defendant fails to comply with the condition, the court is justified in vacating the plea. Brown v. State, 367 So.2d 616 (Fla.1979). Misrepresentation to the court that the plea agreement has been complied with has been held to constitute good cause to vacate a sentence and the plea on which it was based. Lerman v. Cornelius, 423 So.2d 437 (Fla. 5th DCA 1982). However, notwithstanding the restrictions upon the setting aside of a plea after acceptance by the court, the court is nevertheless not bound by any...
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