Turner v. State, 97-00120

• Decision Date: 12 February 1997
• Docket Number: No. 97-00120,97-00120
• Citation: 689 So.2d 1107
• Parties: 22 Fla. L. Weekly D446 John Allen TURNER, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1107

689 So.2d 1107

22 Fla. L. Weekly D446

John Allen TURNER, Jr., Appellant, v. STATE of Florida, Appellee.

No. 97-00120.

District Court of Appeal of Florida,

Second District.

Feb. 12, 1997.

LAZZARA, Judge.

The appellant, John Allen Turner, Jr., seeks our review of the trial court's summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 in which part of the relief he sought was to withdraw his pleas of nolo contendere and to proceed to trial. Because we conclude that the record conclusively establishes that his pleas were the product of a court-induced plea offer which cannot be legally fulfilled, we reverse and remand with directions that he be allowed to withdraw his pleas.

The appellant pleaded nolo contendere to two third-degree felony offenses and one first-degree misdemeanor offense which he committed on October 9, 1995. The trial court imposed two concurrent sentences of thirty months as to the felonies and time-served as to the misdemeanor. It also directed that these sentences were to be served concurrently and coterminously with another thirty-month sentence previously imposed on the appellant for a violation of community control in an unrelated case in which the offense occurred on February 7, 1995. The appellant did not take a direct appeal from his judgments and sentences.

Four months after his sentencing, however, the appellant moved the trial court to set aside his pleas under rule 3.850. One of his complaints was that prior to the pleas he was led to believe that the new sentences would terminate at the conclusion of the earlier sentence. He alleged that contrary to this representation, the Department of Corrections had advised him that in accord with section 944.275(4)(b)3., Florida Statutes (1995), he must serve eighty-five percent of his new sentences so that those sentences will not terminate at the expiration of the previously imposed sentence. Based on this turn of events, the appellant claimed that his pleas were unlawfully induced and involuntarily made without a full understanding of the consequences of his pleas.

The trial court summarily denied the motion and attached a copy of the appellant's plea colloquy in support of its conclusion that the appellant was entitled to no relief. Its primary basis for denying the motion was that the transcript refuted one of the appellant's allegations that the plea agreement contemplated that the appellant would serve no more than fourteen to sixteen months of his new sentences. The trial court further determined that because the "85 percent rule" was discussed during the plea proceedings, the appellant was aware that it would apply to these sentences.

We begin our resolution of this case with an examination of section 944.275(4)(b)3., which is the critical underpinning of the appellant's claim for relief. The legislature amended this statutory provision in 1995, with an effective date of October 1, 1995, in an act designated the "Stop Turning Out Prisoners Act." Ch. 95-294, §§ 1, 2, and 5, at 2717-2718, Laws of Fla. In doing so, it added language curtailing the Department of Corrections' discretion to award incentive gain-time to prisoners serving "sentences imposed for offenses committed on or after October 1, 1995," by clearly mandating that for such a sentence "no prisoner is eligible to earn any type of gain-time in an amount that would cause a sentence to expire, end, or terminate, or that would result in a prisoner's release, prior to serving a minimum of 85 percent of the sentence imposed." The legislature further directed that for such a sentence, "a prisoner shall not accumulate further gain-time awards at any point when the tentative release date is the same as that date at which the prisoner will have served 85 percent of the sentence imposed."

It is obvious that the legislature's intent, as embodied in this statutory provision, is to stop the early release of prisoners because of the awarding of gain-time credits by requiring that such prisoners serve a minimum of eighty-five percent of sentences imposed for offenses committed on or after October 1, 1995. It is also clear that the Department of Corrections must apply this provision to the appellant's new sentences because they are based on offenses committed on October 9, 1995, but cannot apply it to his earlier sentence because the offense in that case was committed prior to October 1, 1995. See Gwong v. Singletary, 683 So.2d 109, 111 n. 2 (Fla.1996).

Against this legislative backdrop, we turn to a review of the plea transcript attached to the trial court's order. In doing so, we conclude that this record, rather than refuting appellant's claim, conclusively supports it. It reflects that prior to the plea, the following colloquy took place between the trial court, appellant's trial counsel, the appellant, and an assistant state attorney regarding the parameters of a plea offer made by the trial court:

THE COURT: Mr. Turner, you understand that the offer that was made by the Court this morning was a 30-month concurrent sentence to the one you already have? In other words, the sentences would be run at the same time, you wouldn't have any additional time. Do you understand what the offer is?

APPELLANT'S COUNSEL: Objection to that, Your Honor. I have advised my client that the new offenses under the new '95 guidelines which means he must serve 85% of that sentence, but the new [sic] sentence is under the '94 guidelines and he could--- those two sentences will most likely not end at the same time. I did advise him that.

THE COURT: What does the State say on that point?

ASSISTANT STATE ATTORNEY: I do not believe that every crime categorized is doing 85 percent.

THE COURT: How about if we made it concurrent and coterminous with the other one?

ASSISTANT STATE ATTORNEY: I'm sure you can do that.

APPELLANT'S COUNSEL: If I could advise, my calculations and I believe, in fact, the legislature mandates 85%. I can show you the legislation. 24-month sentence would, in fact, result in the same time, assuming that he received the maximum incentive on the 30 months. If he doesn't receive the maximum incentive, then he is going to do the total or whatever is required of the 30 months under the new guidelines.

THE COURT: Mr. Turner, what the offer is is 30 months which is concurrent and coterminous, which means it runs at the same time and ends at the same time as your other sentence. That's the offer. Now, where do you stand on that?

APPELLANT: My feeling is--my feeling is if it would terminate at the same time as my 30-month sentence you gave me previously, then I'm willing to work with the Court.

APPELLANT'S COUNSEL: He understands that he's not going to risk going to trial if he's not going to do any more time than what he is already sentenced to.

THE COURT: I think I just solved that problem. Why don't you write it up? It's concurrent and coterminous, so it would end at the same time that the other one ends, okay? Write that up and sit over to one side.

(Emphasis added.)

Following a short recess, the appellant appeared with his trial counsel before the trial court for a change of plea. Immediately prior to the pleas, as the record reflects, the following discussion took place between appellant's trial counsel and the trial court:

APPELLANT'S COUNSEL: We have discussed the form, Your Honor, and specifically we did discuss the concepts that the sentence you imposed would be ending at the...