State of Rhode Island v. Dantzler, 83-2900 (1995) ( 1995 )

DECISION This singular issue before this Court is the defendant's motions to withdraw his plea of nolo contendere before Mr. Justice Orton (retired) on May 21, 1986 and before me on May 25, 1988 for which the defendant was sentenced by Justice Orton to serve a 25 year sentence, 13 of which suspended with 13 years probation and for which he was sentenced by me to serve 25 years with 7 years of said sentence suspended with 7 years probation.

The defendant has established that both Justice Orton and I advised the defendant that the period of probation would commence upon his release. Since the defendant escaped from the Adult Correctional Institution prior to the completion of his sentenced to be served, he argues, in effect, he was not on probation and the state's motion to have him declared a violator of the referenced cases must be dismissed. Relying on Rhode Island Supreme Court decisions in State v. Chu, 615 A.2d 1023 andState v. Jacques, 554 A.2d 193, Mr. Justice Clifton of the Superior Court denied said motion to dismiss. The defendant now urges this Court to permit him to "withdraw" his pleas because he claims he was "misinformed" when the period of probation would commence and that he had a right to rely on Judge Orton and my statements that probation commence upon release. Although the argument of the defendant is a bit ingenious, it misses the mark.

Rule 3.2(d) of the Superior Court Rules of Criminal Procedure states:

"a motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed . . ."

Clearly the defendant was sentenced and had commenced the serving of a significant portion of his sentences. Thus, the Rule does not allow for this type of motion.

Even assuming the motion is considered timely filed, the defendant has offered no evidence to support his claim he was, in fact, misinformed and that misinformation negates a finding by both justices that his pleas offered were "made voluntarily, intelligently, and with knowledge and understanding of all matters set forth in the attached request(s) and affidavit(s)."

For the reasons stated, the defendant's motions to withdraw his pleas are denied.