Opinion
No. 90-3530.
May 27, 1992.
Appeal from the Circuit Court, Escambia County, Lacey A. Collier, J.
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and James W. Rogers, Asst. Atty. Gen., Tallahassee, for appellee.
Larry Black appeals his convictions and sentences entered on his pleas of nolo contendere pursuant to a written plea agreement in two criminal cases. In circuit court case number 90-2061, Black was found guilty of possession of cocaine and sentenced to 5 years' imprisonment. In circuit court case number 90-3656, he was found guilty of the sale of cocaine and sentenced to 10 years' imprisonment, to be served concurrently with the sentence in case number 90-2061. In both instances, he was sentenced as a habitual felony offender.
We hold that the trial court erred in failing to rule on Black's request to withdraw his plea made at the sentencing hearing when he became aware that the trial court would impose a 10-year habitual felony offender sentence for the offense in case number 90-3656. Upon hearing this sentence, Black immediately objected, arguing to the court that he signed a deal for 4 1/2 to 5 1/2 years, and that his court appointed attorney had previously told him that the sentence would be within that range. At that time, Black's attorney commented on the record that he only told Black that such range was a "possible sentence." Thus, a potentially serious misunderstanding about the essential terms of the plea agreement became evident at this point, making it incumbent upon the trial court to make further inquiry to determine Black's understanding about the plea agreement sentence and whether he should be allowed to withdraw his plea. However, the trial court only inquired whether Black had signed the written plea agreement the court had previously reviewed with him, declined to hear any further argument from Black on the matter, and proceeded to impose the 5-year sentence in case number 90-2061. In view of the misunderstanding between Black and his attorney made apparent on the record, the trial court erred in not fully developing the factual matters relevant to this issue and ruling on Black's request to withdraw his plea at that time. See Golden v. State, 509 So.2d 1149 (Fla. 1st DCA 1987) (a plea may be withdrawn where the judge abides by the plea agreement but the defendant was induced to enter the plea by a mistake or misunderstanding). See also Ryals v. State, 516 So.2d 1092 (Fla. 5th DCA 1987) (a trial judge should be liberal in the exercise of his discretion and allow the withdrawal of a plea of guilty where it is shown that the plea was based on a failure of communication or misunderstanding between the defendant and his attorney). Accordingly, we reverse the convictions and remand for further proceedings to determine whether Black's request to withdraw the plea should be granted. We express no opinion on whether the request should or should not be granted.
We reject the state's contention that we should dismiss this appeal because Black did not make a timely motion to withdraw the plea. We recognize that Black was represented by an attorney at the sentencing hearing and that his attorney made no such motion at the time; but Black clearly stated on the record that he wanted to "take my agreement back" because of the misunderstanding about the sentence. The purpose of a trial court's inquiry into voluntariness of the plea required by the rules is to determine that the negotiated plea was not the product of coercion or improper inducement attributable to a promise of a more favorable sentence. Since Black's direct request was sufficient to require the trial court to determine whether to allow him to withdraw his plea based on the asserted misunderstanding, the state's motion to dismiss will be denied.
Rules 3.170 and 3.172, Fla.R.Crim.P.
The judgments of conviction and sentences are reversed and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
SMITH, J., concurs.
ZEHMER, J., specially concurs with written opinion.
WEBSTER, J., concurs in result only.
I fully concur in the court's opinion. I write only to point out several additional significant deficiencies surrounding the trial court's acceptance of the plea and imposition of sentence revealed in my review of the record which the panel decided not to reach on this appeal.
Rule 3.170(j), Florida Rules of Criminal Procedure, provides that "[n]o plea of guilty or nolo contendere shall be accepted by a court without first determining, in open court . . ., that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness, and that there is a factual basis for the plea. . . ." Rule 3.172(a) also contains similar language and provides additionally that counsel for the prosecution and the defense shall assist the trial court in this function. Rule 3.172(c) requires the trial court to determine that the defendant understands certain specified matters before accepting a nolo contendere plea, including "the mandatory maximum penalty provided by law, if any, and the maximum possible penalty provided by law." Fla. R.Crim.P. 3.172(c)(i). The supreme court recently held in Koenig v. State, 597 So.2d 256 (Fla. 1992), that a plea of nolo contendere is not properly accepted where the transcript of the plea hearing does not affirmatively reflect that the defendant knowingly and intelligently entered the plea, which must be demonstrated through an adequate inquiry pursuant to rule 3.172 regarding the factual basis for the plea and the defendant's understanding of the rights that he is waiving by entering the plea.
As in Koenig, the record in this case reveals that the circuit court's inquiry into the voluntariness of and factual basis for Black's plea was inadequate because it failed to comply fully with the procedure outlined in rule 3.172. Prior to accepting Black's plea, the court did not determine that Black understood each of his rights outlined in rule 3.172(c). The record is silent as to the factual basis for the plea. While the court asked Black, do you "understand the charges to which you're entering this plea to and also the maximum penalty provided by law for those offenses," the court mentioned neither the nature of the charges nor the mandatory minimum penalty and the maximum possible penalty provided by law, as required by rule 3.172. The trial court failed to make appropriate inquiry to determine that Black understood the significance of being sentenced as a "career criminal" under the habitual felony offender statute. The record indicates that prior to the pronouncement of the sentence in case number 90-3656, the court did not inform Black that the maximum possible sentence he could receive for that offense was a term of imprisonment not exceeding 30 years as a habitual felony offender. The written plea agreement indicated only that the "maximum" sentence was 15 years and that Black would be sentenced as a "career criminal." Also, as noted previously, the trial court did not make a sufficient inquiry to determine that Black understood this possibility when the plea was accepted, and there was a manifest misunderstanding between Black and his attorney concerning the maximum penalty that could be imposed for the offense in case number 90-3656 under the plea agreement. As these matters cast considerable doubt that the record affirmatively demonstrates Black's plea was voluntarily and intelligently made, Koenig, 597 So.2d 256 on remand the trial court should consider taking appropriate steps to correct them.