Opinion
No. 88-2183.
August 10, 1989.
Appeal from the Circuit Court, Leon County, L. Ralph Smith, J.
Michael E. Allen, Public Defender, and James C. Banks, Sp. Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and A.E. Pooser, IV, Asst. Atty. Gen., for appellee.
Sharpe has appealed from his conviction and sentence for possession of cocaine with intent to sell pursuant to a plea of nolo contendere. He confines this appeal to the issue of whether he should have been permitted to withdraw his plea at the sentencing proceeding, after the trial judge declined to follow the joint recommendation of the state and defense counsel regarding the sentence to be imposed. We reverse and remand with directions.
Pursuant to the sentencing guidelines, the recommended sentencing range for Sharpe's offense was 30 months to 3 1/2 years incarceration. The state and defense counsel agreed to make a joint recommendation to the trial court that Sharpe be sentenced at the bottom of the recommended range, and as a youthful offender pursuant to Chapter 958, Florida Statutes. This agreement was communicated to Sharpe prior to the entry of his plea.
At the August 1988 sentencing proceeding, however, the trial court declined to follow the joint recommendation insofar as it recommended sentencing as a youthful offender. Sharpe thereupon moved to withdraw his plea, but the trial court denied the motion subject to reconsideration if Sharpe was not assigned by the Department of Corrections to a youthful offender institution.
A trial court is not bound to impose a sentence recommended by the state or defense counsel simply because the defendant is informed that such a recommendation will be made. See Little v. State, 492 So.2d 807 (Fla. 1st DCA 1986). However, if a defendant enters a plea with the understanding that the recommendation will be followed and the court declines to follow it, the defendant must be permitted to withdraw the plea. Lightfoot v. State, 533 So.2d 930 (Fla. 1st DCA 1988).
The trial court herein denied Sharpe's motion to withdraw his plea without determining his awareness, prior to entry of the plea, that the trial court was not bound by counsels' sentencing recommendation. Further, there is nothing in the record to sufficiently reflect the details of the plea agreement in this case. We, therefore, reverse and remand for further proceedings to determine the awareness of the defendant as to the effect of the sentence recommendation at the time that the plea was entered. If it is determined that he was reasonably led to believe that the plea was conditioned upon the trial court's following the sentence recommendation, the court must either allow defendant to withdraw the plea or sentence defendant according to the recommendation.
SHIVERS, C.J., concurs.
ERVIN, J., concurs and dissents with opinion.
Although I agree with the majority that this case must be reversed, I know of no legal basis for its direction to the trial court to conduct a proceeding to determine the defendant's awareness of the effect of the sentence recommendation prior to allowing appellant to withdraw his plea.
It is well established that the trial judge is not bound by any sentencing recommendation established by a plea agreement between the state and the defendant. If, however, the court does not carry out the terms of the plea bargain, the defendant has two alternatives: he may withdraw his plea and proceed to a disposition on the matter without any admissions, statements or other evidence given in the plea negotiations being used against him, or he may agree to proceed with the plea without being bound by any conditions or agreements. Davis v. State, 308 So.2d 27, 29 (Fla. 1975); Fla.R.Crim.P. 3.172. See also Brown v. State, 245 So.2d 41 (Fla. 1971) (defendant's motion to withdraw guilty plea should have been granted, because the plea was entered based upon defense counsel's honest misunderstanding that defendant would receive a probationary sentence); Williams v. State, 541 So.2d 752 (Fla. 1st DCA 1989) (defendant's motion to withdraw plea should have been granted, because condition was imposed following acceptance of plea); Lightfoot v. State, 533 So.2d 930 (Fla. 1st DCA 1988) (defendant's motion to withdraw his plea, which was made after the trial judge refused the jointly recommended sentence of the state and defense counsel, should have been granted); Moore v. State, 489 So.2d 1215 (Fla. 2d DCA 1986) (trial court erred in failing to give defendant opportunity to withdraw plea once it decided not to impose sentence in accordance with bargain); Stranigan v. State, 457 So.2d 546 (Fla. 2d DCA 1984) (defendant should have been afforded opportunity to withdraw nolo contendere plea, which was tendered on the understanding that he would receive probationary sentence, when trial court instead imposed sentence consisting of community control).
In the instant case, appellant's nolo contendere plea was clearly entered upon a joint recommendation by the state and defense counsel that he would be sentenced as a youthful offender. The trial judge did not concur in that agreement. He was, therefore, legally obligated to allow appellant to withdraw the plea upon his timely motion. Fla.R.Crim.P. 3.172(g). As neither the rule nor the above case law provides a basis for the evidentiary-type proceeding directed by the majority, I would reverse appellant's conviction and remand with directions for the trial court either to impose a sentence in accordance with the plea bargain or to allow appellant the opportunity to withdraw his plea and proceed to trial on the merits.