Wilson v. State, NN-339
| Decision Date | 21 December 1979 |
| Docket Number | No. NN-339,NN-339 |
| Parties | James Edward WILSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Wilson, pro se.
Jim Smith, Atty. Gen., Lee Mandell and David P. Gauldin, Asst. Attys. Gen., for appellee.
Appellant's appeal from the denial of his motion for post conviction relief challenges the validity of the sentence entered for first degree burglary on the ground the trial court failed to advise him prior to the entry of his plea that he could be subjected to a mandatory minimum sentence of three years since the burglary was committed with use of a firearm. While there is authority holding there is no requirement under Florida law that a defendant be advised of any mandatory minimum sentence, e. g., Knowles v. State, 356 So.2d 885 (Fla.3d DCA 1978), that decision was decided prior to the addition of Fla.R.Crim.P. 3.172(c)(i), requiring the trial judge to advise the defendant of such penalty. The present rule, effective July 1, 1977, The Florida Bar, 343 So.2d 1247 (Fla. 1977), applied to appellant's conviction.
The state cites United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) as authority for its position that collateral relief is not available when all a defendant shows is the failure of a trial court to comply with the formal requirements of the rule governing the entry of guilty pleas. In Timmreck, the Court held that a formal violation of Fed.R.Crim.Pr. 11, 18 USCA, is neither constitutional nor jurisdictional, and that the defendant's asserted error, the failure of the trial judge to advise the defendant that the charge involved a three-year minimum mandatory special parole term, should have been raised on direct appeal.
We conclude the holding in Timmreck as it applies to a federal rule of criminal procedure, is not controlling. While Fla.R.Crim.P. 3.172 was modeled in part after Rule 11, the Florida rule is different from its federal counterpart since it states that if a defendant pleads guilty or nolo contendere, 1 without an express reservation of his right to appeal, he "gives up his right to appeal all matters relating to the judgment, including the issue of guilt or innocence, but he does not impair his right to review by appropriate collateral attack." See also Fla.R.App.P. 9.140(b)(1). The rule has been construed to preclude appeals from court rulings which preceded guilty pleas but to permit appeals from actions which occurred contemporaneously with the pleas. Robinson v. State, 373 So.2d 898, 902 (Fla. 1979). One such contemporaneous action relates to an alleged error that a plea was not voluntarily and intelligently made. In order to preserve such an issue on direct appeal, the record must disclose that it was first presented to the trial court by motion to withdraw the plea. Id. Nevertheless, even in the absence of such motion, as here, the defendant may still raise the issue of his plea's validity by seeking collateral relief. Id. at 903. See also Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979).
The sentence imposed must be vacated and a...
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