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Holmes v. State

District Court of Appeal of Florida, Fifth District
Jul 1, 1994
639 So. 2d 151 (Fla. Dist. Ct. App. 1994)

Opinion

No. 93-2343.

July 1, 1994.

Appeal from the Circuit Court for Volusia County; John W. Watson, III, Judge.

James B. Gibson, Public Defender, and Lyle Hitchens, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Kristen L. Davenport, Asst. Atty. Gen., Daytona Beach, for appellee.


Holmes appeals from the four-year habitual offender sentence he received after entering a guilty plea to attempted burglary of a conveyance. Holmes did not receive any notice the state or trial judge intended to seek an enhanced sentence prior to entering his plea. The plea form merely says that "should" he be determined to be a felony offender by the trial judge he "could" receive a longer prison sentence and "would not be entitled" any basic gain time.

§§ 810.01, 777.04, Fla. Stat. (1993).

We have held that this type of plea form does not satisfy the notice requirement of Ashley v. State, 614 So.2d 486 (Fla. 1993). See Thompson v. State, 638 So.2d 116 (Fla. 5th DCA 1994). Accordingly, we vacate the sentence and remand. On remand, the trial court may sentence as it deems appropriate. The trial court should give Holmes an opportunity to withdraw his plea and proceed to trial if it determines an enhanced sentence is justified, or sentence Holmes to a guidelines sentence.

Sentence VACATED; REMANDED.

COBB, W. SHARP and THOMPSON, JJ., concur.


Summaries of

Holmes v. State

District Court of Appeal of Florida, Fifth District
Jul 1, 1994
639 So. 2d 151 (Fla. Dist. Ct. App. 1994)
Case details for

Holmes v. State

Case Details

Full title:DARRYL HOLMES, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Jul 1, 1994

Citations

639 So. 2d 151 (Fla. Dist. Ct. App. 1994)

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