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Herald v. State

District Court of Appeal of Florida, Second District
Mar 31, 2000
755 So. 2d 763 (Fla. Dist. Ct. App. 2000)

Opinion

No. 2D99-2389.

Opinion filed March 31, 2000.

Appeal from the Circuit Court for Hillsborough County; Cynthia A. Holloway, Judge.

James Marion Moorman, Public Defender, Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.


Richard E. Herald appeals his judgment and sentence in three cases, arguing the court erred in refusing to allow him to withdraw his plea and in failing to follow the statutory prerequisites in sentencing him as a habitual offender. We reverse because the record is clear that Herald moved to withdraw his plea prior to sentencing and prior to the court formally accepting the plea. As this court stated in Mackey v. State, 743 So.2d 1117, 1118 (Fla. 2d DCA 1999), "[u]ntil the court formally accepts the plea, no one is bound — not the defendant, the State or the court." (citing Harden v. State, 453 So.2d 550, 551 (Fla. 4th DCA 1984); Fla. R. Crim. P. 3.172(f)). Under these circumstances, Herald had an absolute right to withdraw his plea. See Mackey, 743 So.2d at 1118. Although our reversal renders the sentencing issue moot, we note that there was no sentencing error.

Reversed and remanded to allow Herald to withdraw his plea.

PARKER, A.C.J., and GREEN, J., Concur.


Summaries of

Herald v. State

District Court of Appeal of Florida, Second District
Mar 31, 2000
755 So. 2d 763 (Fla. Dist. Ct. App. 2000)
Case details for

Herald v. State

Case Details

Full title:RICHARD E. HERALD, Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Second District

Date published: Mar 31, 2000

Citations

755 So. 2d 763 (Fla. Dist. Ct. App. 2000)