Keith v. State, 90-1192

• Decision Date: 19 June 1991
• Docket Number: No. 90-1192,90-1192
• Citation: 582 So.2d 1200
• Parties: 16 Fla. L. Weekly D1666 Edward KEITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1200

582 So.2d 1200

16 Fla. L. Weekly D1666

Edward KEITH, Appellant, v. STATE of Florida, Appellee.

No. 90-1192.

District Court of Appeal of Florida,

First District.

June 19, 1991.

Nancy A. Daniels, Public Defender, Gail E. Anderson, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Asst. Atty. Gen., Tallahassee, for appellee.

SHIVERS, Chief Judge.

Keith appeals his judgment and sentence. The trial court rejected a plea agreement at sentencing; and Keith argues he should be allowed to withdraw his plea of nolo contendere on the ground he was not told the trial court was not bound by the plea agreement. However, because Keith did not move to withdraw his plea in the trial court, we have no jurisdiction to review the merits of Keith's argument. Robinson v. State, 373 So.2d 898 (Fla.1979); Parker v. State, 576 So.2d 943 (Fla. 1st DCA 1991); Harris v. State, 563 So.2d 792 (Fla. 1st DCA 1990). Appeal dismissed.

JOANOS, J., concurs.

ZEHMER, J., specially concurs, with opinion.

ZEHMER, Judge (specially concurring).

While I concur with the decision to dismiss this appeal, I feel obligated to explain my reasons for doing so in somewhat greater detail than shown in the majority opinion.

Keith was charged with two counts of sexual battery. Pursuant to negotiations, the state agreed to drop one charge in exchange for Keith's plea of nolo contendere to the other. The guidelines sentence on this plea arrangement was nine to twelve years, but the state agreed, along with defense counsel, to recommend a downward departure to three years with ten years' probation in view of the counseling and therapy program in which he was participating. Keith was arraigned and sentenced at a single hearing held March 21, 1990. Based on the agreement with the state, he entered a nolo plea, and both the defense and the state presented information supporting the recommendation for the agreed downward departure. This recommendation was also supported by the county sheriff. Pursuant to rules 3.170(j) and 3.172, Florida Rules of Criminal Procedure, the trial judge inquired of Keith about the voluntariness of his plea, the rights he was waiving by his plea, and that as a result of the plea Keith understood he was "facing time in state prison"; but the trial judge made no inquiry about Keith's understanding of the maximum possible sentence or that the court was not bound by the plea agreement with the state and specifically the state's recommended sentence. The court accepted the plea, rejected the state's recommendation for downward departure, and sentenced Keith to twelve years' imprisonment, commenting:

Well, each time an offense like this comes up, this whole community is scarred by it. It's an affront to everyone in Wakulla County when a adult takes advantage of a 14 year old, with or without consent, or under any circumstances. I find absolutely no excuse for it.

Judgment and sentence were entered on the date of the hearing.

On April 6, 1990, Keith's attorney filed a motion to reconsider sentence pursuant to rule 3.800(b), Florida Rules of Criminal Procedure, which simply asked the court to reconsider the sentence in view of the state's recommendation of a lesser sentence and the supporting matter submitted at the time of sentencing. So far as the record on appeal indicates, this motion was never ruled upon. Keith filed a notice of appeal from the final judgment and sentence on April 17, 1990. ¹

Keith contends on this appeal that the trial court erred in accepting his plea and sentencing him to twelve years' imprisonment without informing him of the maximum possible sentence he could receive, contrary to rule 3.172(c), and failed to inform him that the court was not bound by the state's recommendation of three years' imprisonment. He contends that he should be allowed to withdraw his plea under these circumstances, and asks this court to reverse the judgment and sentence to permit the trial court to either resentence him in accordance with the state's recommendation or permit him to withdraw his plea. He recognizes that failure to first present this issue to the court below by appropriate motion to withdraw his plea may constitute an impediment to appellate review, however, and if we so decide, he requests the court to dismiss this appeal without prejudice...