From Casetext: Smarter Legal Research

Freeman v. State

District Court of Appeal of Florida, Second District
Oct 31, 1979
376 So. 2d 294 (Fla. Dist. Ct. App. 1979)

Opinion

No. 79-69.

October 31, 1979.

Appeal from the Circuit Court, Lee County, R. Wallace Pack, J.

Andrew P. Mavrides, P.A., Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.


Pursuant to a plea bargain, appellant pled nolo contendere to a charge of possession of a controlled substance, reserving the right to appeal the denial of his motions to suppress and dismiss. We find no error in the denial of these motions. However, appellant has a valid complaint with respect to his sentence.

The plea bargain contemplated that after consideration of appellant's presentence investigation the court could sentence him up to a maximum of five years, but if the court decided to place him on probation, it would withhold adjudication and not require him to serve more than one year in jail as a condition of probation. At sentencing two months later, the court concluded that appellant's PSI justified placing him on probation with the condition that he spend one year in jail. In addition, the court adjudicated appellant guilty and fined him $5,000.

Appellant contends, and we agree, that the sentence cannot stand because it deviated from the terms of the plea bargain which the court had originally approved. When the court did not later honor this bargain, whether through mistake or subsequent change in its point of view concerning the appropriate sentence, appellant should have had the opportunity to withdraw his plea before sentencing. Davis v. State, 308 So.2d 27 (Fla. 1975).

Accordingly, we hereby vacate the sentence and remand the case for further proceedings. In the event the court continues to feel that a sentence other than that contemplated by the plea bargain is warranted, it should first give appellant the option to withdraw his plea. See State ex rel. Milton v. Strickland, 361 So.2d 446 (Fla.2d DCA 1978).

HOBSON and BOARDMAN, JJ., concur.


Summaries of

Freeman v. State

District Court of Appeal of Florida, Second District
Oct 31, 1979
376 So. 2d 294 (Fla. Dist. Ct. App. 1979)
Case details for

Freeman v. State

Case Details

Full title:CARL WAYNE FREEMAN, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Oct 31, 1979

Citations

376 So. 2d 294 (Fla. Dist. Ct. App. 1979)

Citing Cases

White v. State

Stranigan v. State, 457 So.2d 546 (Fla. 2d DCA 1984). When the plea agreement was not honored through…

State v. Sloan

Accordingly, we reverse and remand this case for resentencing. If the trial court cannot make a finding of…