Nesmith v. State, s. 79-247
| Decision Date | 14 September 1979 |
| Docket Number | 79-248,Nos. 79-247,s. 79-247 |
| Citation | 374 So.2d 1139 |
| Parties | Nathaniel NESMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, Bartow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
We are once again faced with the question of whether the trial court should have allowed appellant an opportunity to withdraw a negotiated plea of guilty before sentencing where the court had determined it could not honor the terms of the plea bargain. We reverse.
Appellant and another individual were charged in separate informations with two counts of burglary. On June 27, 1978, appellant was brought before the court for arraignment, and the judge immediately announced, "Year or less followed by probation, PSI." 1 The case was temporarily passed in order to give appellant an opportunity to discuss the offer with his attorney. Defense counsel then informed the court that pursuant to plea negotiations, appellant would change his plea of not guilty to guilty. After determining the voluntariness of the plea, the trial judge accepted the plea, stating:
Okay. I will find a sufficient factual basis for the acceptance of the plea. I will withhold adjudication, refer the matter for presentence investigation. Set sentencing for August 24. I will allow the defendant to remain free on the same bond pending completion of the presentence investigation.
The judge then added:
If he commits any crimes from this date forward or doesn't show on August 24 or doesn't go to the probation office today or tomorrow the plea negotiations are off and he's subject to the full penalty that can be imposed by the law on these two offenses.
Neither appellant nor his counsel was asked whether these conditions were acceptable, and neither expressly agreed to them.
Appellant failed to comply with the conditions imposed by the trial judge at the time of acceptance of the guilty plea, and it was not until October 10, 1978, that appellant appeared before the court for sentencing. At this hearing, defense counsel stated that unless the court still intended to impose the sentence contemplated in the plea bargain, appellant wished to withdraw his guilty plea and have the case set for trial. The trial judge denied the request and imposed two five-year prison sentences to be served concurrently.
The courts of this state have held in several cases that when a trial judge determines that he can no longer honor the terms of a plea bargain, he is required to give the defendant an opportunity to withdraw his plea. Brown v. State, 245 So.2d 41 (Fla.1971); Pringle v. State, 341 So.2d 535 (Fla. 2d DCA 1977); Moore v. State, 339 So.2d 228 (Fla. 2d DCA 1976); Kurlin v. State, 302 So.2d 147 (Fla. 1st DCA 1974); Enos v. State, 272 So.2d 847 (Fla. 4th DCA), Cert. denied, 277...
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Pumphrey v. State, BL-403
...plea. Moore v. State, 489 So.2d 1215 (Fla. 2d DCA 1986); LaBaissiere v. State, 429 So.2d 96 (Fla. 2d DCA 1983); Nesmith v. State, 374 So.2d 1139 (Fla. 2d DCA 1979). This case is very similar, factually, to Moore, supra. In the court made clear the terms of the plea bargain. Appellant would ......
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Smith v. State
...the more severe sentence. See Henson v. State, 977 So.2d 736 (Fla. 2d DCA 2008); Payne, 624 So.2d at 816. See also Nesmith v. State, 374 So.2d 1139 (Fla. 2d DCA 1979). Here, the terms set out by the trial court were not part of the plea agreement. The trial court accepted Smith's plea befor......
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...See also, Folske v. State, 430 So.2d 574 (Fla. 5th DCA 1983); La Baissiere v. State, 429 So.2d 96 (Fla. 2d DCA 1983); Nesmith v. State, 374 So.2d 1139 (Fla. 2d DCA 1979). Here, the acceptance of the plea by the court was not conditioned upon defendant appearing for sentencing, so the trial ......
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Fambro v. State, 90-1871
...DCA 1987); Moore v. State, 489 So.2d 1215 (Fla. 2d DCA 1986); LaBaissiere v. State, 429 So.2d 96 (Fla. 2d DCA 1983); Nesmith v. State, 374 So.2d 1139 (Fla. 2d DCA 1979). The above cited cases all involved additional conditions added after formal acceptance, but imposed unilaterally by the t......