Hoover v. State, No. BI-372

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BARFIELD; WIGGINTON; ERVIN; ERVIN
• Citation: 12 Fla. L. Weekly 1755,511 So.2d 629
• Parties: 12 Fla. L. Weekly 1755 Stanley HOOVER, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. BI-372
• Decision Date: 21 July 1987

Page 629

511 So.2d 629 12 Fla. L. Weekly 1755 Stanley HOOVER, Appellant,
v.
STATE of Florida, Appellee. No. BI-372. District Court of Appeal of Florida,
First District. July 21, 1987.
Rehearings Denied Sept. 21, 1987.

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.

Page 630

BARFIELD, Judge.

In this appeal from a thirty year sentence for sexual battery and lewd assault on his eight year old daughter, Stanley Hoover challenges the trial court's departure from the recommended guidelines sentence, asserting that the reasons given for departure were not "clear and convincing." We do not address the issue raised by appellant, because we find that the trial court committed fundamental error when it accepted appellant's plea of nolo contendere to a charge of sexual battery under section 794.011(4)(e), Florida Statutes (1983).

Although neither party raised the issue addressed in this opinion, consideration of it is essential to the administration of justice. The parties were required to file supplemental briefs and to appear before this Court at oral argument to clarify their positions with respect to the propriety of the trial court's acceptance of the plea under the particular circumstances of this case.

Section 794.011(4)(e), Florida Statutes (1983), which charges sexual battery of a child over the age of eleven by a person in a position of familial or custodial authority over the victim, was not in effect at the time the alleged incidents occurred, having been replaced by section 794.041, Florida Statutes (1984), which charges sexual battery of a child twelve years of age or older by a person in a position of familial or custodial authority over the victim. ¹ The undisputed evidence before the court proved the victim was eight years old.

At the time appellant allegedly committed the offenses with which he was charged, the Florida Legislature had provided that a person over the age of eighteen who commits sexual battery upon a person less than twelve years of age, whatever their relationship to each other, is guilty of a "capital" felony punishable by

Page 631

life imprisonment with a mandatory minimum twenty-five year term of incarceration. ² The legislature had also provided that a person who sexually batters a child twelve years of age or older is guilty of one of several offenses: a life felony ³, a first degree felony ⁴, or a second degree felony ⁵. Various lesser offenses may be included in these felonies, depending upon the attendant factual circumstances. ⁶

The schedule of lesser included offenses in the Florida Standard Jury Instructions in Criminal Cases lists under section 794.011(2), the offense with which appellant was charged, only one category 1 lesser included offense: "battery" (a first degree misdemeanor), and four category 2 lesser included offenses: "attempt" (a first degree felony), "aggravated battery" (a second degree felony), "aggravated assault" (a third degree felony), and "assault" (a second degree misdemeanor). ⁷

Page 632

The prosecutor asserted before the trial court that the parties had agreed that appellant would be permitted to "plead down" from the "capital" felony under section 794.011(2) to the first degree felony of "sexual battery in a familial position" with the understanding that he would be sentenced to thirty years, and that with gain time he would actually serve about eighteen years. ⁸ Appellant asserts on appeal that the plea was negotiated to avoid the victim's having to testify against her father and to avoid appellant's receiving a life sentence with a twenty-five year minimum mandatory term for "capital" sexual battery, that there was no bargain regarding the sentence, and that he never agreed to a thirty year sentence.

The State's brief contends that the parties agreed that appellant would receive a sentence of thirty years, and that appellant's contention that there was no agreed upon sentence is, in effect, a repudiation of the plea agreement. The State argues that the case should therefore be remanded so that appellant may withdraw his plea and proceed to trial.

Appellant concedes that if a misunderstanding had occurred regarding the plea agreement, the proper remedy would be to allow him to withdraw his plea if he so desired. He asserts, however, that there was no misunderstanding in this case, and that he does not wish to withdraw his plea. Appellant claims he is "perfectly happy" with his plea to a first degree felony and has challenged only his sentence, that jeopardy attached when the trial court accepted his plea, and that the sentences cannot be vacated until he moves to withdraw the plea, which this Court cannot force him to do.

The parties both assert that this Court may not address the fact that appellant

Page 633

pled nolo contendere to a charge for which he could not have been found guilty, arguing that this was a "negotiated plea of convenience" to a first degree felony, which serves to waive any defect, citing Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA 1979), and Trainor v. State, 468 So.2d 484 (Fla. 2d DCA 1985). ⁹ The parties apparently misunderstand the purpose and function of a plea of nolo contendere as a "plea of convenience." ¹⁰

We find that the trial court committed fundamental error ¹¹, which this Court may address sua sponte ¹², in accepting appellant's

Page 634

plea of nolo contendere to a crime for which he could not have been convicted under the facts before the trial court. It is obvious that the parties and the trial judge in this case either blatantly ignored, or were inexcusably mistaken regarding, the version and terms of the criminal statute in effect when the incidents alleged in the information occurred, and that appellant was therefore improperly allowed to plead to an offense which the evidence before the trial court clearly proved he did not commit, i.e., sexual battery of a child over the age of eleven.

The United States Supreme Court approved acceptance of a "plea of convenience" in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in which the defendant, charged with first degree murder, protested his innocence but pled guilty to second degree murder to avoid a possible death sentence. The Court noted that the record in that case contained strong evidence of actual guilt. While the record in this case contains evidence that appellant sexually battered his eight year old daughter, and this evidence would support acceptance of a plea of nolo contendere to violation of section 794.011(2), Florida Statutes (1984 and 1985), this same evidence precludes acceptance of such a plea to sexual battery of a child over the age of eleven under any of the other subsections of section 794.011 or under section 794.041.

Florida Rule of Criminal Procedure 3.172(a) requires the trial judge, before he accepts a plea of guilty or nolo contendere, to satisfy himself that the plea is voluntarily entered and that there is a factual basis for it. In Williams v. State, 316 So.2d 267, 271-72 (Fla.1975), the Florida Supreme Court observed that the purpose of this requirement is "to ensure that the facts of the case fit the offense with which the defendant is charged" and "to avoid a defendant's mistakenly entering a plea of guilty to the wrong offense." The court noted that "a plea may meet the test of voluntariness, knowledge and understanding of the consequences, yet still be inaccurate," and that the normal consequence of a determination that there is not a factual basis for the plea would be for the court to set it aside. Id. Although the court held that the plea in that case was not required to be set aside because Williams had not demonstrated that noncompliance with the rule resulted in prejudice or harm to him, we note that Williams did not involve a situation in which the uncontroverted evidence before the trial court proved that he did not commit the offense to which he pled.

In Eisaman v. State, 440 So.2d 470 (Fla. 5th DCA 1983), the defendant was charged with kidnapping in connection with a convenience

Page 635

store robbery; he negotiated a plea of guilty to false imprisonment. The appellate court noted that "where it is clear from the factual basis presented at the plea hearing that the defendant could not have been convicted of the crime to which he has pleaded guilty, fundamental error has occurred, which can be corrected on appeal," but found that the factual basis to support the lesser included offense in that case "appears prima facie." Id. at 472. Such a finding of a prima facie factual basis to support the offense to which appellant pled cannot be made in the case before us.

In Dydek v. State, 400 So.2d 1255 (Fla. 2d DCA 1981), in which the defendant pled nolo contendere to possession of cocaine and drug paraphernalia, the appellate court held that the evidence was insufficient to support a conviction for possession of drug paraphernalia and that the trial court had erred in accepting the plea, notwithstanding defense counsel's stipulation to a factual basis for the plea. The court noted the requirement of rule 3.172(a) that the trial court "receive in the record factual information to establish the offense to which the defendant has entered his plea" and stated that although appellant did not raise the issue below, "an appellate court will always consider a fundamental error that is apparent on the face of the record." Id. at 1257-58. The court observed: "We can think of no error more fundamental than the conviction of a defendant in the absence of a prima facie showing of the essential elements of the crime charged." Id. Certainly at least as fundamental an error, which the appellate court is obligated to consider, is the conviction of a defendant of an offense when the undisputed evidence proves that an essential...