State v. Lach, 93-03799
Decision Date | 18 January 1995 |
Docket Number | No. 93-03799,93-03799 |
Citation | 651 So.2d 695 |
Parties | 20 Fla. L. Weekly D239 STATE of Florida, Appellant, v. Michael T. LACH, Appellee. |
Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Erica M. Raffel, Asst. Atty. Gen., Tampa, for appellant.
Michael C. Cheek, Clearwater, for appellee.
Appellant, State of Florida, challenges the order of the trial court granting appellee's, Michael T. Lach, motion to suppress evidence of appellee's prior felony conviction. We reverse.
Appellee was charged with violating section 790.23, Florida Statutes (1991), by being in felonious possession of a firearm having previously been convicted and adjudicated guilty of a felony. Appellee's vehicle was initially stopped by a police officer for having excessive auxiliary lights in violation of chapter 316, Florida Statutes. As the officer approached appellee, appellee advised he was in possession of a suspended driver's license. Appellee was then arrested for driving with a suspended license, and a subsequent search of his vehicle revealed a .45 caliber semi-automatic pistol behind the center console. A subsequent records search indicated that appellee had been convicted of grand theft and dealing in stolen property in Pinellas County on April 20, 1988, and that his civil rights had not been restored.
Appellee filed a motion to suppress the evidence of his prior conviction alleging that on April 20, 1988, he pled guilty to a charge of violation of probation in Pinellas County Court without being adequately advised as to the nature and consequences of his plea. The thrust of appellee's motion indicates that the plea colloquy was incomplete and, as a result, appellee did not know at the time of his arrest for felonious possession of a firearm that he had been previously adjudicated guilty at the time he pled to the violation of probation.
In support of this, appellee's motion indicates that at the time of his arrest on the instant charge, appellee told the officers involved that his perception was that he had not been convicted of a crime and that he felt that he had merely been placed on probation and adjudication withheld. We conclude that the record does not support appellee's position.
The record of the November 11, 1988 change of plea hearing reveals that the trial judge explained the constitutional rights appellee was waiving. Appellee was present at the change of plea hearing and was represented by private counsel. Appellee's plea and resulting disposition was a negotiated plea. The assistant state attorney, in the presence of appellee and his counsel, explained the negotiated disposition to the trial judge as follows:
Judge, it will be an adjudication with five years probation, condition of restitution within two years....
Judge, in addition, another condition of this probation will be a suspended prison term of five years in the Department of Corrections, and Mr. Cox will affirm that that has been the agreement for a change of plea with your approval.
(Emphasis supplied.) Appellee's counsel then acknowledged as follows: "And at this time, Your Honor, my client would withdraw his previously tendered plea of not guilty and enter a plea of guilty to the charge, with the understanding of disposition as previously set forth by Mr. Corsmeier [Assistant State Attorney]." The trial judge then placed appellee under oath and had the following colloquy with him:
When you enter into this change of plea and admit you violated your probation, you're waiving all these rights I've just outlined for your benefit. Do you understand all that?
The Court also finds that you're an intelligent man; that you fully understand the legal consequences and legal significance of your tender of the plea to that--of admitting you violated the terms of your probation.
The Court further finds you entered into this change of plea knowingly, freely and voluntarily, and it's based on the benefit of your--the advice of your attorney, Mr. Cox. The Court finds Mr. Cox is a very competent lawyer and is well-trained in criminal procedures.
The plea, having been entered into freely and voluntarily, will be accepted by the Court.
Any legal causes shown why sentencing cannot be imposed at this time?
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U.S. v. Drayton
...upon revocation could not have been imposed absent an adjudication. Finch v. Mayo, 137 Fla. 762, 189 So. 27 (1939); State v. Lach, 651 So.2d 695, 699 (Fla.2d D.C.A.), rev. denied, 659 So.2d 1087 (1995); see also Shargaa v. State, 102 So.2d 809, 812 (Fla.), cert. denied, 358 U.S. 873, 79 S.C......
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