Lee v. State, 93-264
Decision Date | 29 September 1994 |
Docket Number | No. 93-264,93-264 |
Citation | 642 So.2d 1190 |
Parties | 19 Fla. L. Weekly D2096 Andrew Lamar LEE, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Richard Parker, Asst. Atty. Gen., Tallahassee, for appellee.
Andrew Lamar Lee appeals from habitual felony offender sentences imposed after his plea of guilty to one count of sexual battery with a deadly weapon and one count of burglary of a dwelling. 1 Lee argues two points on appeal: (1) that despite his receipt of the state's notice of habitualization prior to entry of his plea, the sentences must be reversed because the trial court did not personally advise him of the collateral consequences of habitualization, as mandated in Ashley v. State, 614 So.2d 486 (Fla.1992), and (2) that the court erred in sentencing him as a habitual offender for sexual battery because this offense is a life felony for which no habitualized sanction is authorized.
We affirm on point one for the reasons set forth in Heatley v. State, 636 So.2d 153 (Fla. 1st DCA 1994).
We must reverse on the second point because the record reflects that Lee entered a plea to sexual battery, a life felony with respect to which a habitual offender sentence is invalid. The state concedes error on this point. See Lamont v. State, 610 So.2d 435 (Fla.1992) ( ); Lambert v. State, 630 So.2d 230 (Fla. 2d DCA 1994) (sexual battery). We reject Lee's request that his sentence be remanded for imposition of a guidelines sentence. Inasmuch as it appears Lee entered a plea on the assumption that he would qualify as a habitual offender, he "should not be permitted to renege on a portion of his agreement with impunity." See Barrett v. State, 622 So.2d 1371, 1372 (Fla. 4th DCA 1993). Rather than vacating the sentence at this level, we remand with the following directions. The trial court shall extend the state the opportunity either to (1) accept the plea with the sentence imposed without the habitual offender status, i.e., vacate only the illegal habitual offender sentence for sexual battery, while having the judgment stand, and allow Lee to be resentenced on this charge, or (2) withdraw from the plea agreement--thus vacating both of the judgments and sentences--and reinstate the original charges and proceed to trial. See Boatwright v. State, 637 So.2d 353 (Fla. 1st DCA 1993) and the cases cited therein.
REVERSED and REMANDED with directions.
Nothing of record supports an inference that appellant was unaware of the possible consequences of his guilty plea, up to and including a 17-year sentence as a habitual offender. Before he was sentenced, albeit after his guilty plea, appellant was fully advised by counsel in open court of the likely practical effect of a 17-year habitual offender sentence. This outspoken defendant expressed no surprise and requested no opportunity to withdraw his plea, although the trial judge, who exhibited great patience, afforded him an opportunity to speak, and heard him...
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Williams v. State, 94-755
...sentence is illegal, and may be challenged on appeal notwithstanding that it was the product of a negotiated plea. E.g., Lee v. State, 642 So.2d 1190 (Fla. 1st DCA 1994); Boatwright v. State, 637 So.2d 353 (Fla. 1st DCA 1994); Barrett v. State, 622 So.2d 1371 (Fla. 4th DCA 1993). Therefore,......
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Hughes v. State, 1D03-1539.
...or (ii) withdraw from the plea agreement and proceed to trial. See Wade v. State, 822 So.2d 550 (Fla. 1st DCA 2002); Lee v. State, 642 So.2d 1190 (Fla. 1st DCA 1994). REVERSED and REMANDED with KAHN, WEBSTER and POLSTON, JJ., concur. ...
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Williams v. State
...In that event, the original charges shall be reinstated, including the life felony as originally charged. Lee v. State, 642 So.2d 1190 (Fla. 1st DCA 1994). REVERSED AND PALMER, C.J., and SAWAYA, J., concur. ...
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O'Neal v. State
...classified as youthful offender even though sentencing documents did not mention youthful offender status). Relying on Lee v. State, 642 So.2d 1190 (Fla. 1st DCA 1994), the state requests that on remand it be allowed the opportunity to withdraw from the plea agreement. We deny that request ......