From Casetext: Smarter Legal Research

Fairweather v. State

District Court of Appeal of Florida, Second District
Jun 3, 1983
432 So. 2d 688 (Fla. Dist. Ct. App. 1983)

Opinion

No. 82-1730.

June 3, 1983.

Appeal from the Circuit Court, Pinellas County, Jerry R. Parker, J.

Wayne J. Boyer of Boyer Fricker, Clearwater, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.


The appellant, Nancy Marie Fairweather, has appealed the judgment and sentence entered after she pled guilty to second degree murder. The appellee, State of Florida, has agreed that the trial court erred when it retained jurisdiction over one-third of the appellant's sentence, and we accordingly remand for proceedings consistent with this opinion.

The state charged the appellant with first degree murder in connection with the death of her husband. By agreement, the appellant pled guilty to the lesser included offense of second degree murder. At the time she entered her plea, the appellant was advised that she could receive a maximum sentence of life imprisonment, but was not informed that the court could retain jurisdiction over one-third of any sentence imposed. The appellant was subsequently sentenced to serve a forty year sentence, and the court retained jurisdiction over one-third of the sentence.

We agree with the appellant's contention that the court erred in accepting her plea of guilty without first informing her that it could retain jurisdiction over one-third of any sentence imposed. After the sentence was imposed by the trial court in the case sub judice, our supreme court in the case of State v. Green, 421 So.2d 508, 510 (Fla. 1982), held:

[I]f a judge wishes to retain jurisdiction, a defendant must be advised, prior to pleading guilty or nolo contendere, that the court can retain jurisdiction over a part of the sentence.

Accordingly, if a trial judge desires to retain jurisdiction over a portion of a sentence pursuant to section 947.16, Florida Statutes (1981), he must, in determining the voluntariness of a plea pursuant to Florida Rule of Criminal Procedure 3.172, inform a defendant that he can retain jurisdiction over a portion of his sentence.

Since the court in the case sub judice failed to so inform the appellant, this case must be remanded to the trial court. Upon remand, the court must either strike that portion of the judgment and sentence retaining jurisdiction over one-third of the appellant's sentence or allow her to withdraw her plea. State v. Green.

Reversed and remanded with instructions.

HOBSON, A.C.J., and LEHAN, J., concur.


Summaries of

Fairweather v. State

District Court of Appeal of Florida, Second District
Jun 3, 1983
432 So. 2d 688 (Fla. Dist. Ct. App. 1983)
Case details for

Fairweather v. State

Case Details

Full title:NANCY MARIE FAIRWEATHER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Jun 3, 1983

Citations

432 So. 2d 688 (Fla. Dist. Ct. App. 1983)

Citing Cases

Mrozowski v. State

He is correct. State v. Green, 421 So.2d 508 (Fla. 1982); Brown v. State, 434 So.2d 21 (Fla. 2d DCA 1983);…

Fairweather v. State

Fairweather was sentenced to forty years with one-third retained. On appeal this court remanded with…