FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-4006
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FRANK LAMAR JENNINGS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Suwannee County.
Paul S. Bryan, Judge.
September 12, 2019
B.L. THOMAS, J.
Appellant challenges the trial court’s denial of his motion to
withdraw plea. He argued that his sentence of fourteen years
followed by sixteen years’ probation violated his plea agreement.
Facts
Appellant was charged with fleeing a law-enforcement officer,
resisting an officer without violence, driving while license
suspended or revoked, multiple counts of possession of a controlled
substance with intent to sell or deliver, and possession of a
controlled substance within 1000 feet of a place of worship.
Appellant’s Criminal Punishment Code scoresheet provided for a
maximum sentence of 360 years in prison.
The plea agreement stipulated that in exchange for
Appellant’s open guilty plea, the State would recommend a
sentence of no more than fifteen years in prison and would not seek
an additional probation term. Appellant would be allowed to argue
for a downward departure from the fifteen-year prison sentence.
Before accepting the plea, the court conducted an extensive
colloquy, during which Appellant confirmed the voluntariness of
his plea, his understanding of the plea agreement, and his
understanding of what the sentence could be given the scoresheet.
During the colloquy, the court, having established that another
judge would be presiding over sentencing, discussed the State’s
recommendation of a fifteen-year prison sentence and asked the
Appellant, “You understand nobody's offering you any assurances
other than it will not be in excess of fifteen years?,” to which
Appellant replied “Yes, sir.” The plea agreement was then accepted
by the court.
At the sentencing hearing, the State upheld the agreement,
recommending to the court a fifteen-year prison sentence. The
court sentenced the Appellant to fourteen years in prison to be
followed by sixteen years of drug-offender probation.
Appellant filed a motion to withdraw plea alleging that the
Appellant was not told of the possibility of additional probation,
and that the thirty-year split sentence violated the plea
agreement. The court denied the motion, stating that the court had
been lenient with the Appellant by reducing his original 360-year
potential incarceration sentence to a fourteen-year incarceration
sentence with a “lengthy probation” period to follow, which was
less than the State’s recommendation of fifteen years of
incarceration.
Analysis
The denial of a motion to withdraw plea is reviewed under an
abuse of discretion standard. Smith v. State,
249 So. 2d 1284, 1286
(Fla 1st DCA 2018) (citing Woodly v. State,
937 So. 2d 193, 196
(Fla. 4th DCA 2006)).
Generally, when a trial court expressly informs a defendant of
the sentence it will impose under a plea agreement, the trial court
must make it clear to the defendant whether it intends to impose
a probationary period in excess of that sentence. Jefferson v. State,
515 So. 2d 407, 408 (Fla. 1st DCA 1987) (holding that the court
violated the plea agreement because it did not inform the
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defendant that an additional probationary period would be
imposed). However, in Perras v. State,
550 So. 2d 131 (Fla. 1st DCA
1989), this court distinguished Jefferson, holding that there is a
key difference between the court stating that it will sentence a
defendant within a certain range under an agreement and the
State agreeing to seek a sentence within a specified range.
The supreme court stated in State v. Adams that the “only
bargain was that the state attorney would make a
recommendation to the court. This was done. When the sentence
was imposed, the judge was not bound by the recommendation of
the state attorney or any negotiations which occurred between the
state attorney and the defense counsel.”
342 So. 2d 818, 820 (Fla
1977). As is the case here, “if the agreement only calls for the state
to recommend a particular sentence and it is clear that the trial
judge may impose a greater sentence, the defendant cannot
withdraw the plea if a greater sentence is imposed so long as the
state carries out its promise.” Goins v. State,
672 So. 2d 30, 31 (Fla.
1996).
Here, the State adhered to the plea agreement and sought a
fifteen-year prison sentence, allowing the Appellant to argue for a
lesser sentence. Appellant previously asserted that he understood
the agreement, which left the maximum term within the discretion
of the sentencing judge. The sentencing court did not violate the
agreement by imposing a fourteen-year prison sentence followed
by sixteen years of probation. * Appellant’s plea was voluntary, and
the lower court did not abuse its discretion in denying the
Appellant’s motion to withdraw plea.
AFFIRMED.
WINOKUR and M.K. THOMAS, JJ., concur.
* Additionally, because the State termed its offer as a “cap” of
fifteen years, a sentence including fourteen years of incarceration
likely would not violate the agreement regardless of the added
probationary term. Rollman v. State,
855 So. 2d 239, 242 (Fla. 1st
DCA 2003) (Padovano, J., concurring) (noting that, regarding plea
agreements, “the term ‘cap’ is generally understood to signify only
the incarcerative portion of the sentence”).
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Andy Thomas, Public Defender, Jasmine Quintera Russell,
Assistant Public Defender, Christopher L. Craun, Tallahassee, for
Appellant.
Ashley Moody, Attorney General, Barbara Debelius, Assistant
Attorney General, Tallahassee, for Appellee.
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