Gonzalez v. State, 73--781
| Decision Date | 27 September 1974 |
| Docket Number | No. 73--781,73--781 |
| Citation | 300 So.2d 691 |
| Parties | Pablo GONZALEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James A. Gardner, Public Defender, Sarasota, and E. Earl Taylor, Jr., Asst. Public Defender, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
This is an appeal from a denial of appellant's motion to vacate judgment and sentence.
Appellant was indicted for first degree murder. Private counsel recommended by appellant's parents was appointed to defend him. Thereafter, appellant entered a plea of guilty to murder in the second degree and was sentenced to a term of twenty years. The conviction and sentence were affirmed by this court in Gonzalez v. State, Fla.App.2d, 1972, 267 So.2d 45.
The crux of appellant's motion to vacate is that his plea was not freely and voluntarily entered with an understanding of its consequences because he was not informed that second degree murder carries with it a mandatory minimum twenty year sentence. He says that there were two others involved in the crime with him and that they received sentences of only five years upon charges of third degree murder. He asserts that he would not have pled guilty to the second degree charge had he known of the mandatory minimum sentence.
On the direct appeal, we specifically held that the plea had been voluntarily entered by the appellant with full understanding of its consequences. The question of whether appellant was advised of the statutory minimum sentence does not appear to have been specifically considered.
Insofar as the responsibility of the trial judge was concerned, while it may have been prudent to advise the appellant of any mandatory minimum sentence before receiving the plea, there is no requirement in Florida that this be done. The judge did advise appellant that by virtue of his plea he could be sentenced to life imprisonment. In fact, he received twenty years. Appellant cannot complain that his associates received lesser sentences. For aught this record shows, he may have been the most culpable of the three.
Even if it be true that his court-appointed lawyer did not advise him of the minimum mandatory sentence, the circumstances of this case are such that appellant is not entitled to have his plea set aside. The court accepted a plea to the reduced charge of second degree murder at a time prior to the abolition of the death penalty by the U.S. Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See Hagans v. State, Fla.App.1st, 1968, 212 So.2d 79. Our statement in Manning v. State, Fla.App.2d, 1967, 203 So.2d 360, is apropos:
The order is affirmed.
I regret that I must dissent from the decision of the court. The sole issue before us is whether the appellant is entitled to an evidentiary hearing as to whether, Under the circumstances of this case, his plea of guilty was made and received with a full understanding of its consequences. See FRCrP 3.170(j); Roberts v. State, Fla.App.1962, 142 So.2d 152. The precise circumstances alleged in the motion to vacate included these:
'Defendant's co-defendants each entered a guilty plea and received five (5) years imprisonment. Defendant believed that he would receive the same sentence when he entered his guilty plea, but was sentenced to twenty (20) years imprisonment for second degree murder. Defendant did not know that he could have made a motion to withdraw the guilty plea, and his attorney did not advise defendant of the fact that defendant could have him (the attorney), to make an oral motion to withdraw the guilty plea if this defendant was dissatisfied with any part of the proceedings, so the defendant remained silent.
'All defendants were equally guilty and none of them had any prior police record.
...
To continue reading
Request your trial
-
Bryant v. State, 56603
...that a defendant be advised of any mandatory minimum sentence. Knowles v. State, 356 So.2d 885 (Fla.3d DCA 1978); Gonzalez v. State, 300 So.2d 691 (Fla.2d DCA 1974). See also Scott v. State, 369 So.2d 330 (Fla.1979) (upholding the constitutionality of section 775.087(2) in the face of an al......
-
Owens v. Wainwright
...to tell the defendant of the mandatory minimum sentence, Fed.R.Crim.P. 11(c)(1), Florida law does not. E.g., Gonzalez v. State, 300 So.2d 691, 692 (Fla.Dist.Ct.App.1974). Cf. Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir.1980) (requirements of Fed.R.Crim.P. 11 on colloquy before court acce......
-
State v. Turner, 85-1842
...minimum sentence. See Knowles v. State, 356 So.2d 885 (Fla. 3d DCA 1978) cert. denied, 361 So.2d 833 (Fla.1978); Gonzalez v. State, 300 So.2d 691 (Fla. 2d DCA 1974). In originally accepting the negotiated plea, the trial judge met the requirements of the law and rules in force and effect at......
-
Knowles v. State, 77-1095
...Knowles." There is no requirement under Florida law that the defendant be advised of any mandatory minimum sentence. Gonzalez v. State, 300 So.2d 691 (Fla. 2d DCA 1974). The test in this case is whether the plea had been voluntarily entered with a full understanding of its consequences. Fro......