Tobey v. State, 84-895
| Decision Date | 02 November 1984 |
| Docket Number | No. 84-895,84-895 |
| Citation | 458 So.2d 90 |
| Parties | Gerald Albert TOBEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.
Appellant complains that the trial court erred in refusing to allow him to withdraw his guilty pleas.
Pursuant to a plea bargain, appellant pled guilty to one count of attempted sexual battery and one count of procuring a minor to perform in sexually oriented motion pictures. Prior to accepting appellant's guilty pleas, the trial court conducted an extensive inquiry into the basis for the pleas and the voluntariness of the pleas. The trial court stated:
I have agreed, should you plead guilty, to order a presentence investigation and to sentence you under the sentencing guidelines. I do not know what they are at this time, but whatever they are, your sentence will fall within it.
At no time during the plea colloquy was the actual length of appellant's sentence discussed.
At the sentencing hearing, defense counsel objected to the presentence investigation report as being deficient and biased. He also urged that appellant should be allowed to withdraw his pleas because the assistant state attorney had previously represented to defense counsel that appellant's presumptive sentence under the guidelines would be thirty-six months imprisonment, whereas the guideline range actually called for five and one-half to seven years. Defense counsel said he had told appellant that his sentence under the guidelines would be thirty-six months and that appellant entered his pleas on this basis. In response, the assistant state attorney admitted discussing the "likelihood" of such a sentence based on his knowledge of appellant's prior record. While the assistant state attorney also explained that often his office is not aware of a defendant's full criminal background at the time the plea is entered, appellant's one prior conviction had already been disclosed when he entered his pleas. The trial court refused to allow the appellant to withdraw his pleas, stating that the only agreement made with appellant was to sentence him pursuant to the guidelines. The appellant was subsequently sentenced to two concurrent terms of seven years imprisonment.
When a defendant moves to withdraw his plea of guilty, the court should be liberal in exercising its discretion to permit the withdrawal, especially where it is shown that the plea was based on a failure of communication or a misunderstanding of the facts. Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983). Such a situation may arise where the attorney for a defendant misrepresents to him the consequences of his plea. Costello v. State, 260 So.2d 198 (Fla.1972); Brown v. State, 245 So.2d 41 (Fla.1971); Folske v. State, 430 So.2d 574 (Fla. 5th DCA 1983).
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Van Horn v. State, 84-2274
...The court granted the motion, in part, on the observation that the delay could not prejudice the defendant.3 See Tobey v. State, 458 So.2d 90 (Fla. 2d DCA 1984).1 The sentencing involved in Jackson itself was for violation of a term of probation imposed for a crime committed before the guid......
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Wagner v. State, 5D03-756.
...unintentional, it still negated the voluntariness of Appellant's plea. In my view, under these facts, the decision in Tobey v. State, 458 So.2d 90 (Fla. 2d DCA 1984), is directly on In Tobey, the defendant entered an open guilty plea with the understanding that his presumptive sentence unde......
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Golden v. State, BL-300
...the judge abides by the plea agreement but the defendant was induced to enter the plea by a mistake or misunderstanding. Tobey v. State, 458 So.2d 90 (Fla. 2d DCA 1984); Ritchie v. State, 458 So.2d 877 (Fla. 2d DCA 1984). Appellant contends that his counsel informed him that the maximum sen......
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Thomas v. State
...Lee, 501 So.2d at 593; Fortini, 472 So.2d at 1386; see Johnson v. State, 547 So.2d 238, 239 (Fla. 1st DCA 1989); Tobey v. State, 458 So.2d 90, 91 (Fla. 2d DCA 1984). Accordingly, based on our decision in Lee and because the State failed to comply with the terms of the plea agreement, we qua......