Geiger v. State, 87-133

• Decision Date: 26 October 1988
• Docket Number: No. 87-133,87-133
• Citation: 532 So.2d 1298,13 Fla. L. Weekly 2417
• Parties: 13 Fla. L. Weekly 2417 Susan Marie GEIGER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1298

532 So.2d 1298

13 Fla. L. Weekly 2417

Susan Marie GEIGER, Appellant, v. STATE of Florida, Appellee.

No. 87-133.

District Court of Appeal of Florida Second District.

Oct. 26, 1988.

James Marion Moorman, Public Defender, and W.H. Pasch, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and David R. Gemmer, Asst. Atty. Gen., Tampa, for appellee.

PARKER, Judge.

Geiger appeals her judgments and sentences for one count of possession of a controlled substance, two counts of grand theft, three counts of petit theft, one count of forgery, and two counts of uttering a forged instrument. Geiger alleges that the trial court erred in sentencing her. We agree and reverse.

Geiger was charged by six separate informations with two counts of possession of a controlled substance, one count of possession of paraphernalia, nine counts of uttering a forged instrument, two counts of forgery, two counts of grand theft, three counts of petit theft, and one count of unauthorized use of a credit card. Geiger thereafter entered into a written plea agreement with the state. In return for Geiger's agreement to plead guilty or no contest to nine specified charges, the state agreed to nolle prosequi the remaining eleven charges. The agreed upon sentence was to be between five and one-half and seven years in prison which was below the recommended guidelines sentence. Geiger agreed to be placed on probation consecutive to the prison sentence and further agreed to make restitution. The plea agreement expressly provided for probation to terminate upon payment of the restitution. The trial court approved the plea agreement, accepted Geiger's pleas, and ordered a presentence investigation.

At the sentencing hearing, the trial judge sentenced Geiger as follows: five years for one count of possession of a controlled substance; two-year terms for one count of forgery, one count of grand theft, and two counts of uttering a forged instrument to run consecutively with the five-year term for possession of a controlled substance and concurrently with each other; and sixty days in the county jail on three counts of petit theft. The trial judge also placed Geiger on probation for five years for one count of grand theft and made drug treatment and the payment of restitution conditions of probation. ¹ After the trial judge announced her intent to impose these sentences, the court recessed to permit defense counsel to consult with Geiger regarding the sentencing. When the court reconvened, defense counsel stated that Geiger intended to withdraw her pleas. The trial judge, however, would not permit Geiger to do so. The trial judge entered a written judgment of guilt which placed the defendant on probation and made no provision for probation to terminate upon the payment of restitution. The state, consistent with the plea agreement, nolle prossed the remaining charges.

However well meaning the trial court was in seeking, by its sentence, to help Geiger overcome a substance abuse problem, ² the order placing Geiger on probation does not comport with the parties' plea agreement which the trial court approved. Accordingly, the trial court erred when it refused to permit Geiger to withdraw her pleas. See Davis v. State, 473 So.2d 753 (Fla. 4th DCA 1985); Alvis v. State, 421 So.2d 769 (Fla. 4th DCA 1982); see also Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983) (court should be liberal in exercising its discretion in permitting a defendant to withdraw a guilty plea).

We also must address the additional criminal offenses to which Geiger pleaded nolo contendere and the charges which the state nolle prossed. When a defendant successfully challenges a plea and is permitted to withdraw a plea of nolo contendere or guilty which was entered as a result of a plea bargain, the bargain is "abrogated" and the defendant must "accept all of the consequences which the plea originally sought to avoid." Fairweather v. State, 505 So.2d 653, 655 (Fla. 2d DCA 1987) (quoting Commonwealth v. Ward, 493 Pa. 115, 124-125, 425 A.2d 401, 406, cert. denied, 451 U.S. 974, 101 S.Ct. 2055, 68 L.Ed.2d 354 (1981)). Accordingly, we reverse the judgments and imposition of probation, vacate the sentences, and remand with directions that Geiger be permitted to withdraw her pleas on all of the charges. We direct further that the trial court permit Geiger to enter pleas on all of the charges contained in the reinstated informations.

In anticipation that statutory time limitations and speedy trial may be raised on remand as a result of our decision, we address those issues for the purposes of assisting the trial court. The eleven charges dismissed against Geiger consist of nine third-degree felonies and two first-degree misdemeanors which have limitation periods of three years and two years respectively. See § 775.15(2)(b), (c), Fla.Stat. (1985). The alleged criminal acts took place between March 27, 1985 and September 20, 1985. The limitations statute requires that a prosecution be commenced within the established time period. Commencement of prosecution is accomplished by the filing of an indictment or information or by another act which constitutes commencement of prosecution such as the issuance of a valid arrest warrant. Rubin v. State, 390 So.2d 322 (Fla.1980). This court has...