Gunn v. State, 93-2254

• Citation: 643 So.2d 677
• Decision Date: 12 October 1994
• Docket Number: No. 93-2254,93-2254
• Parties: 19 Fla. L. Weekly D2172 Dexter GUNN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 677

643 So.2d 677

19 Fla. L. Weekly D2172

Dexter GUNN, Appellant, v. STATE of Florida, Appellee.

No. 93-2254.

District Court of Appeal of Florida Fourth District.

Oct. 12, 1994.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.

STEVENSON, Judge.

Appellant, Dexter Gunn, pled guilty to armed robbery, armed kidnapping and possession of a firearm by a convicted felon. He was subsequently sentenced as a violent habitual offender on each conviction. Appellant challenges his sentence and the trial court's denial of his motion to withdraw his plea. For the reasons stated below, we reverse.

A brief review of the somewhat tortured procedural background of this case is necessary to fully understand the decision that follows. During the course of Gunn's trial, he changed his previously entered pleas of not guilty and pled guilty to armed robbery, armed kidnapping and possession of a firearm by a convicted felon. At the subsequent sentencing hearing, Gunn's attorney advised the court that Gunn had discussed with him "his second thoughts about entering this plea...." The court instructed defense counsel to make a motion to withdraw the plea if that was his intention. Defense counsel replied, "I'm not making the motion, Judge. It's not clear to me what Gunn wants to do at this point, honestly." Gunn joined in and said that he "would like to make a motion to withdraw the plea" to which the trial court replied, "[m]otion denied." At the conclusion of the sentencing hearing, the trial court declared Gunn a violent felony habitual offender and sentenced him to fifteen years in prison for the firearm charge. The court sentenced Gunn to forty years in prison with a mandatory minimum fifteen years as a violent habitual felony offender for the armed robbery charge and forty years in prison for armed kidnapping. All of the sentences were ordered to run concurrently. Gunn subsequently filed a rule 3.850 motion and asked for a belated appeal alleging that his counsel had failed to file an appeal as he had requested. The trial court denied the motion without a hearing. In Gunn v. State, 612 So.2d 643 (Fla. 4th DCA 1993), this court reversed the trial court and remanded the cause for an evidentiary hearing on the issue of whether Gunn had told his trial counsel that he wanted to appeal and whether trial counsel neglected to file the notice of appeal. At the hearing on remand, appellant's counsel filed a written motion to withdraw guilty pleas. However, the court refused to consider that motion and determined that the only appropriate issue on remand was whether to allow Gunn a belated appeal. At the hearing on remand, the trial court granted Gunn's request to file a belated appeal. This appeal followed.

Appellant raises two issues in this appeal. First, he argues that the trial court erred in denying his motion to withdraw his guilty pleas made prior to sentencing. Gunn argues that the motion to withdraw his guilty pleas should have been granted because the state failed to give prior written notice of intent to habitualize and the trial judge failed to adequately inform him of all the significant consequences of habitualization, thus rendering his plea involuntary. See Ashley v. State, 614 So.2d 486 (Fla.1993). Gunn asks that this court vacate his pleas and...