Jones v. StateJones v. State
Appellant seeks review of a sеntence imposed, after a guilty plea, for the offense of felony petit theft. Appellant argues that her election to be sentenced pursuant to
Appellant was charged with the commission of a felony petit theft in September 1983 and entered a guilty pleа accompanied by an express election to be sentence pursuant to the provisions of
The court also informed appellant thаt it was bound by neither the presumptive guidelines sentence nor the state‘s recommendation with regard thereto. The court did not inform appellant as to her ineligibility for parole; appellant asserts that such failure vitiates her election to be sentenced pursuant to
Unlike Moore, the present case involves a negotiated plea. It is well established that the voluntariness of a guilty plea is dependent upon an awareness оf the consequences thereof. See, e.g., Brady v. U.S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Thus, a defendant must be aware of the direct sentencing consequences which attend a plea. See State v. Green, 421 So.2d 508 (Fla. 1982). However, appellant does not challenge the validity of her guilty plea, but seeks only to have her sentence vacated so that she might reconsider whether to select the application of
Accordingly, the sentence appealed is affirmed.
BOOTH and WENTWORTH, JJ., concur.
ERVIN, C.J., dissents with written opinion.
ERVIN, Chief Judge, dissenting.
I respectfully dissent. Notwithstanding that appellant was not advised of the consequences of selecting guideline sentencing, the majority affirms, relying upon this court‘s opinion in Moore v. State, 455 So.2d 535 (Fla. 1st DCA 1984), holding that because the rule and legislation authorizing the guidelines require only a showing that a defendant “affirmatively select” guideline sentencing, there is no necessity for such selection to be equatable with the term “knowingly and intelligently.” I would feel bound by the Moore holding if the dispositive facts in the instant case were the same as those stated in Moore. Unlike the case at bar, Moore involved a situation in which the defendant‘s selection of guideline sentencing was not made part of a plea bargain agreement. Rather, it occurred after the rendition of a jury verdict which had found Moore guilty of armed robbery. Moore, then, was sentenced with none of thе strictures imposed upon trial judges following a tender of a plea of guilt. See specifically Florida Rules of Criminal Procedure
In my judgment, because the record fails to reveal the existence of an express waiver of the defendant‘s right to a proper consideration of parole,1 the statute and the rule, in their application, not facially, must be said to violate constitutional prohibitions agаinst ex post facto laws. A violation of the ex post facto constitutional provision occurs when a law has retrospective effect, i.e., it applies tо events occurring before its enactment, and it disadvantages the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981). Weaver indicates that if a defendant is deprived of the right to qualify for parole, the deprivation may amount to an ex post facto violation, if applied retroactively. 450 U.S. at 34, 101 S.Ct. at 967. In the case on review, appellant, by selecting guideline sentencing, unknowingly waived a valuable constitutional right: the right to be sentenced under the law existing at the time the offense was committed.2
Thus there should be no question that retroactive application of
A situation similar to that before us occurs when, as part of a plea bargain, the defendant is not informed by the court that it may retain jurisdictiоn over a portion of his sentence. See State v. Green, 421 So.2d 508, 509 (Fla. 1982), holding that the imposition of retention is a significant consideration in the plea bargain arrangement which should be fully explainеd to a defendant before his plea is accepted, otherwise he would not be completely informed of the consequences of his plea. See also Shofner v. State, 433 So.2d 657 (Fla. 1st DCA 1983); Ward v. State, 433 So.2d 1221 (Fla. 3d DCA 1983); Brown v. State, 434 So.2d 21 (Fla. 2d DCA 1983).
Nor should thеre be any question that the defendant was disadvantaged by the sentence imposed. Admittedly the trial judge could have sentenced appellant outside the guidelines tо a five-year term of imprisonment. See Sections
Although no specific objection was raised at the time the sentence was imposed as to the failure of the court to advise the appellant
I would therefore reverse the sentence imposed with directions that the appellant be given the option either of withdrawing her plea of guilty or her seleсtion of guideline sentencing.