Rhodes v. State, No. 96-4426

CourtCourt of Appeal of Florida (US)
Writing for the CourtPADOVANO
Citation704 So.2d 1080
Parties23 Fla. L. Weekly D188 James Lavyon RHODES, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 96-4426
Decision Date30 December 1997

Page 1080

704 So.2d 1080
23 Fla. L. Weekly D188
James Lavyon RHODES, Appellant,
v.
STATE of Florida, Appellee.
No. 96-4426.
District Court of Appeal of Florida,
First District.
Dec. 30, 1997.
Rehearing Denied Feb. 5, 1998.

Page 1081

Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.

PADOVANO, Judge.

The defendant, James Rhodes, entered a plea of nolo contendere to charges of burglary of a dwelling and grand theft, and he was sentenced on each charge as a habitual felony offender. In this direct appeal, the defendant presents two arguments for reversal: (1) the trial court failed to inform him that habitual offenders are ineligible for gain time or control release; and (2) the trial court erred in using a subsequent felony offense as a predicate for the habitual felony offender sentences. The first of these claims is not preserved for review but the second requires reversal for resentencing.

We decline to address the merits of the defendant's claim that he was not advised of the consequences of habitualization because he did not preserve that issue for review by filing a motion to withdraw the plea in the trial court. 1 The supreme court held in Ashley v. State, 614 So.2d 486 (Fla.1993) that a habitual offender sentence can be properly imposed following a plea of guilty or nolo contendere, if the state has given "written notice of intent to habitualize", and if the trial court has confirmed "that the defendant is personally aware of the possibility and reasonable consequences of habitualization." Here, the defendant claims only a violation of the second Ashley requirement, that he was not advised of the consequences of habitualization. In our view, this claim is one that affects only the voluntariness of the plea and therefore it must be preserved by a timely motion to withdraw in the trial court.

A failure to comply with either of the Ashley requirements could invalidate a habitual offender sentence based on a plea of guilty or nolo contendere, but the two requirements are actually quite different. The state's failure to give notice of its intention to seek an enhanced sentence under the habitual offender statute violates the express requirements of the habitual offender statute, and deprives the defendant of the fundamental right to due process of law. A defendant cannot be expected to plead guilty or nolo contendere to a criminal offense only to find out later that the penalty could be double that which had been disclosed at the time of the plea, and that the procedure would require involuntary participation in a separate evidentiary proceeding at the time of sentencing. As explained in Ashley, this kind of an error results in a "purely legal sentencing issue." The court reasoned that the defendant should be resentenced without any enhancement under the habitual offender sentence.

In contrast, a failure to advise the defendant of the consequences of habitualization affects only the validity of the plea. If the defendant has notice of the state's intent to seek habitualization but is simply unaware of certain legal consequences such as the loss of gain time, the error can be corrected by vacating the plea. In this situation, the defendant can withdraw the plea with the permission of the court and decide once again whether to offer a plea of guilty or nolo contendere in the face of the state's notice of intent to seek an enhanced penalty.

Page 1082

A challenge to the validity of a plea may not be asserted for the first time on direct appeal. As the supreme court explained in Robinson v. State, 373 So.2d 898 (Fla.1979), a defendant may challenge the voluntariness of a plea of guilty or nolo contendere on direct appeal only if the issue had been previously raised in the trial court. The court squarely rejected the notion that a defendant can challenge the validity of a plea for the first...

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30 practice notes
  • State v. Collins, No. SC05-108.
    • United States
    • United States State Supreme Court of Florida
    • 5 Junio 2008
    ...4th DCA 2002); Morss v. State, 795 So.2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So.2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997); and Brown v. State, 701 So.2d 410 (Fla. 1st DCA 1997). We have jurisdiction to resolve the certified conflict. See art......
  • Closet Maid v. Sykes, No. 1D98-660.
    • United States
    • Court of Appeal of Florida (US)
    • 15 Febrero 2000
    ...and may not resort to extrinsic aides to statutory construction. See McLaughlin v. State, 721 So.2d 1170 (Fla.1998); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA Although the phrase "major contributing cause" is not defined in the Workers' Compensation Law, the meaning of this phrase is su......
  • State v. TG, No. SC96081.
    • United States
    • United States State Supreme Court of Florida
    • 25 Octubre 2001
    ..."there would be no record relating to the claim and there would be no ruling or decision to review in appellate court." Rhodes v. State, 704 So.2d 1080, 1082 (Fla. 1st DCA 1997); see also Duhart v. State, 548 So.2d 302, 303 (Fla. 5th DCA 1989) (noting that the preservation requirement "more......
  • Walker v. State, No. 2D06-4871.
    • United States
    • Court of Appeal of Florida (US)
    • 21 Diciembre 2007
    ...4th DCA 2002); Morss v. State, 795 So.2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So.2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997); and Brown v. State, 701 So.2d 410 (Fla. 1st DCA 1997). We now add to this list Rich v. State, 814 So.2d 1207 (Fla. 4th......
  • Request a trial to view additional results
30 cases
  • State v. Collins, No. SC05-108.
    • United States
    • United States State Supreme Court of Florida
    • 5 Junio 2008
    ...4th DCA 2002); Morss v. State, 795 So.2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So.2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997); and Brown v. State, 701 So.2d 410 (Fla. 1st DCA 1997). We have jurisdiction to resolve the certified conflict. See art......
  • Closet Maid v. Sykes, No. 1D98-660.
    • United States
    • Court of Appeal of Florida (US)
    • 15 Febrero 2000
    ...and may not resort to extrinsic aides to statutory construction. See McLaughlin v. State, 721 So.2d 1170 (Fla.1998); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA Although the phrase "major contributing cause" is not defined in the Workers' Compensation Law, the meaning of this phrase is su......
  • State v. TG, No. SC96081.
    • United States
    • United States State Supreme Court of Florida
    • 25 Octubre 2001
    ..."there would be no record relating to the claim and there would be no ruling or decision to review in appellate court." Rhodes v. State, 704 So.2d 1080, 1082 (Fla. 1st DCA 1997); see also Duhart v. State, 548 So.2d 302, 303 (Fla. 5th DCA 1989) (noting that the preservation requirement "more......
  • Walker v. State, No. 2D06-4871.
    • United States
    • Court of Appeal of Florida (US)
    • 21 Diciembre 2007
    ...4th DCA 2002); Morss v. State, 795 So.2d 262 (Fla. 5th DCA 2001); Roberts v. State, 776 So.2d 1034 (Fla. 4th DCA 2001); Rhodes v. State, 704 So.2d 1080 (Fla. 1st DCA 1997); and Brown v. State, 701 So.2d 410 (Fla. 1st DCA 1997). We now add to this list Rich v. State, 814 So.2d 1207 (Fla. 4th......
  • Request a trial to view additional results

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