Brown v. State, No. 83-1008

No. 83-1008 | Fla. Dist. Ct. App. | Jul 1, 1983

LEHAN, Judge.

Appellant was adjudicated guilty based upon his nolo contendere plea. The trial court’s sentence included retention of jurisdiction over one third of the sentence. Appellant, in a motion pursuant to rule 3.850, Florida Rules of Criminal Procedure, contended that the trial court erred in accepting his nolo contendere plea because the trial court "had not informed him that the trial court could retain jurisdiction over one third of the sentence which could be imposed.

The trial court’s order denying appellant’s motion does not demonstrate that the court informed defendant that jurisdiction could be retained over one third of defendant’s sentence; the order indicates that the defendant was not so informed. Failure to so inform a defendant under these circumstances is error. State v. Green, 421 So. 2d 508" court="Fla." date_filed="1982-10-28" href="https://app.midpage.ai/document/state-v-green-1798439?utm_source=webapp" opinion_id="1798439">421 So.2d 508 (Fla.1982); Fairweather v. State, 432 So. 2d 688" court="Fla. Dist. Ct. App." date_filed="1983-06-03" href="https://app.midpage.ai/document/fairweather-v-state-7525951?utm_source=webapp" opinion_id="7525951">432 So.2d 688 (Fla. 2d DCA 1983).

Therefore, we reverse and remand. Upon remand, the trial court can (1) furnish this court with evidence that defendant had been informed of the court’s ability to so retain jurisdiction or (2) either strike that portion of the sentence or allow defendant the opportunity to withdraw his plea.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HOBSON, A.C.J., and CAMPBELL, J., concur.