Lepper v. State, AW-463

• Decision Date: 19 June 1984
• Docket Number: No. AW-463,AW-463
• Citation: 451 So.2d 1020
• Parties: Frederick LEPPER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1020

451 So.2d 1020

Frederick LEPPER, Appellant, v. STATE of Florida, Appellee.

No. AW-463.

District Court of Appeal of Florida First District.

June 19, 1984.

William H. Maness, Jacksonville, for appellant.

Jim Smith, Atty. Gen., Tallahassee, for appellee.

THOMPSON, Judge.

Lepper appeals from the denial of his motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. The only issue which warrants discussion is the one regarding the trial court's failure to provide Lepper an opportunity to withdraw his nolo contendere plea. We affirm.

Pursuant to the terms of a negotiated plea, Lepper agreed to enter a nolo contendere plea to the charges of grand theft and failure to appear and the State agreed to recommend five years probation, with the special condition that Lepper serve 364 days, and make restitution for grand theft, to recommend a consecutive five year probationary term for failure to appear, and to nolle prosse all known cases against Lepper in that circuit in exchange for restitution in those cases. Lepper's nolo plea was accepted by the trial court. Lepper ultimately received a five year sentence for grand theft and a concurrent five year sentence for failure to appear and was required to make restitution.

Although the record does not contain a transcript, if any, of the plea hearing, there is no suggestion the trial court promised Lepper the sentence recommended by the State, or any other sentence, or that the trial court was a party to the plea negotiations. To the contrary, Lepper asserted in his 3.850 motion that when he entered his plea the trial judge said he wanted a P.S.I. prior to sentencing and said he would not be bound by the plea agreement. This indicates the trial court did not or might not concur in the sentence recommended by the State in the plea agreement. Lepper's signed petition to enter a nolo plea contains the following statement: "I recognize that if I have been told by my lawyer that I might receive probation or a light sentence this is merely his prediction and is not binding on the Court." Additionally, there is no assertion that the trial court refused a request by Lepper to withdraw his plea or that such a request was ever made.

Under these circumstances, the trial court was under no duty to provide Lepper a clear opportunity to withdraw his plea at sentencing. The instant situation is clearly distinguishable from a situation, such as that in State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA), cert. denied, 359 So.2d 1222 (Fla.1978), where the defendant tendered a plea in reliance on the trial court's expression of sentencing intentions. A defendant cannot withdraw a voluntary nolo plea solely because the sentence does not conform to what his attorney led him to expect. See Morgan v. State, 414 So.2d 593 (Fla. 3d DCA 1982).

AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, C.J., dissents.

ERVIN, Chief Judge, dissenting.

In appellant's former appeal from the judgment and sentence, now sought to be vacated, we per curiam affirmed Lepper's conviction without prejudice to his right to seek relief pursuant to Florida Rule Criminal Procedure 3.850. Lepper v. State, 431 So.2d 295 (Fla. 1st DCA 1983). Having reviewed the record in the former appeal, which we are permitted to notice judicially, I find that although our opinion gave no reasons for its decision, the judgment and sentence were affirmed because Lepper had entered a plea of nolo contendere without reserving his right to appeal any dispositive issue, thereby waiving a general review of the plea. Following the directions in our earlier opinion, he attacked the sentence imposed, alleging in his motion to vacate sentence that he was not given the opportunity to withdraw his plea of nolo contendere. This allegation is unrefuted by the transcript of the sentencing proceeding.

It is true, as stated by the majority, that there is also nothing in the record revealing that Lepper ever made a request to withdraw his plea; nevertheless my understanding of Florida Rules of Criminal Procedure 3.171(d) and 3.172(g) is that they place first an affirmative duty on the trial judge to offer the defendant the opportunity to withdraw his plea. It is not enough for the trial court to represent, as in the present case, that it may not be bound by the plea agreement. The duty abides with the trial judge to extend the offer to the defendant to withdraw, otherwise it cannot be said that the plea was voluntarily obtained....