Jones v. State, AW-148

• Decision Date: 28 November 1984
• Docket Number: No. AW-148,AW-148
• Citation: 459 So.2d 1151
• Parties: Susan JONES, a/k/a Janice Jones, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1151

459 So.2d 1151

Susan JONES, a/k/a Janice Jones, Appellant, v. STATE of Florida, Appellee.

No. AW-148.

District Court of Appeal of Florida First District.

Nov. 28, 1984.

Rehearing Denied Dec. 18, 1984.

Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., John W. Tiedemann, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant seeks review of a sentence imposed, after a guilty plea, for the offense of felony petit theft. Appellant argues that her election to be sentenced pursuant to Fla.R.Crim.P. 3.701 is vitiated by the court's failure to ascertain whether she was aware that she would not be eligible for parole. We conclude that the court is not required to make such an inquiry and we therefore affirm the sentence imposed.

Appellant was charged with the commission of a felony petit theft in September 1983 and entered a guilty plea accompanied by an express election to be sentenced pursuant to the provisions of Fla.R.Crim.P. 3.701. The state recommended that the penalty imposed be in accord with the presumptive guidelines sentence, and appellant indicated that her plea had been entered in return for this recommendation. The court made an extensive inquiry into the voluntariness of appellant's plea and after informing appellant that she was foregoing various specific constitutional rights, determined that the plea was freely entered with a "full understanding" of both the nature of the plea and its consequences.

The court also informed appellant that it was bound by neither the presumptive guidelines sentence nor the state's recommendation with regard thereto. The court did not inform appellant as to her ineligibility for parole; appellant asserts that such failure vitiates her election to be sentenced pursuant to Fla.R.Crim.P. 3.701. However, application of Rule 3.701 requires only that appellant "affirmatively selects" to be sentenced pursuant to the rule. See § 921.001(4)(a), Florida Statutes. Such affirmative selection does not require any advisement by the court as to ineligibility for parole. See Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984); also see Kiser v. State, 455 So.2d 1071 (Fla. 1st DCA 1984).

Unlike Moore, the present case involves a negotiated plea. It is well established that the voluntariness of a guilty plea is dependent upon an awareness of the consequences thereof. See, e.g., Brady v. U.S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Thus, a defendant must be aware of the direct sentencing consequences which attend a plea. See State v. Green, 421 So.2d 508 (Fla.1982). However, appellant does not challenge the validity of her guilty plea, but seeks only to have her sentence vacated so that she might reconsider whether to select the application of Fla.R.Crim.P. 3.701. Furthermore, appellant's ineligibility for parole is not a consequence which directly attends the plea itself; rather, it is a consequence which attends appellant's election to be sentenced pursuant to Rule 3.701. And appellant's election to be sentenced pursuant to Rule 3.701 is not impacted by the absence of a showing that appellant was aware of her ineligibility for parole, since such election requires only an affirmative selection without any requirement that the court advise a defendant regarding parole ineligibility. See Moore, supra.

Accordingly, the sentence appealed is affirmed.

BOOTH and WENTWORTH, JJ., concur.

ERVIN, C.J., dissents with written opinion.

ERVIN, Chief Judge, dissenting.

I respectfully dissent. Notwithstanding that appellant was not advised of the consequences of selecting guideline sentencing, the majority affirms, relying upon this court's opinion in Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), holding that because the rule and legislation authorizing the guidelines require only a showing that a defendant "affirmatively select" guideline sentencing, there is no necessity for such selection to be equatable with the term "knowingly and intelligently." I would feel bound by the Moore holding if the dispositive facts in the instant case were the same as those stated in Moore. Unlike the case at bar, Moore involved a situation in which the defendant's selection of guideline sentencing was not made part of a plea bargain agreement. Rather, it occurred after the rendition of a jury verdict which had found Moore guilty of armed robbery. Moore, then, was sentenced with none of the strictures imposed upon trial judges following a tender of a plea of guilt. See specifically Florida Rules of Criminal Procedure 3.170(j), placing on the trial court the responsibility of determining that the circumstances surrounding the plea reflect a full understanding of its significance, and 3.172, regarding the factors which must be stated in the record disclosing the voluntariness of the plea. These rules generally incorporate the requirements of Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279 (1969), holding that it is error for a "trial judge to accept ... [a] guilty plea without an affirmative showing that it was intelligent and voluntary." A guilty plea--unlike an affirmative selection to be sentenced following trial--involves the waiver of three important constitutional rights: (1) the privilege against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront one's accusers. 395 U.S. at 243, 23 L.Ed.2d at 279. Indeed, as stated in Harris v. State, 438 So.2d 787, 797 (Fla.1983), for a plea to be effective, "there must be an express waiver of the right ... by the defendant, and the record must reflect that it was knowingly and intelligently made." (Emphasis in original.) This is a restatement of the rule applied in Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760 (1970), holding that in order for a plea to be voluntary, it must be made by one fully aware of the consequences. Moreover, waiver of constitutional rights cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962).

In my judgment, because the record fails to reveal the existence of an express waiver of the defendant's right to a proper consideration of parole, ¹ the statute and the rule, in their application, not facially, must be said to violate constitutional prohibitions against ex post facto laws. A violation of the ex post facto constitutional provision occurs when a law has retrospective effect, i.e., it applies to events occurring before its enactment, and it disadvantages the offender affected by it. Weaver v....