Ketterer v. State
69 So. 3d 1016
| Fla. Dist. Ct. App. | 2011Background
- Ketterer was charged with battery on a law enforcement officer, resisting arrest with violence, and obstructing service of a warrant.
- State gave notice it would seek a PRR minimum sentence; Ketterer entered an open plea based on trial counsel’s representation that counsel would seek a downward departure.
- Plea was entered in one day, sentencing set for another; trial counsel forgot that downward departure cannot be granted for a PRR.
- Plea colloquy and related proceedings failed to inform about PRR or minimum sentencing; the written plea form suggested a five-year minimum but also stated downward departure was possible.
- At sentencing, counsel moved to withdraw the plea; conflict-free counsel later concluded withdrawal was not justified, and no formal withdrawal motion was filed.
- The court ultimately reversed and remanded, holding misadvice and defective plea colloquy warranted withdrawal and noting the improper five-year-and-a-day sentence for resisting arrest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether misadvice about PRR requires withdrawal | Ketterer was misadvised by counsel about PRR penalties. | Trial court proceedings failed to inform about PRR/minimum sentence, impairing voluntary plea. | Yes; improper advice and defective colloquy warranted withdrawal. |
| Whether the pre-sentence withdrawal should be granted given good cause and defective colloquy | Rule 3.170(f) allows withdrawal for good cause before sentencing; record shows good cause. | Trial court denied withdrawal based on misreading, despite misadvice. | Yes; the motion to withdraw should have been granted. |
| Whether the sentence on resisting arrest with violence is impermissible | The sentence imposes an illegal five-years-and-a-day under § 775.082(9)(a)3.d. | State concedes error on the five-year-plus sentence. | Sentence reversed for resisting arrest with violence due to impermissible duration. |
Key Cases Cited
- Carter v. State, 22 So. 3d 793 (Fla. 1st DCA 2009) (allows oral pre-sentence withdrawal motions)
- Morales v. State, 973 So. 2d 679 (Fla. 2d DCA 2008) (pre-sentencing withdrawal motion standards)
- Rappaport v. State, 24 So. 3d 1211 (Fla. 4th DCA 2009) (preference to liberally construe withdrawal motions in defendant's favor)
- Thornton v. State, 747 So. 2d 439 (Fla. 4th DCA 1999) (information on potential mandatory penalties in plea colloquy)
- Wright v. State, 961 So. 2d 1036 (Fla. 4th DCA 2007) (abuse of discretion standard for denial of pre-sentence withdrawal)