Tommy Edward McCOLLUN, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
Nancy A. Daniels, Public Defender and Lynn A. Williams, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
JOANOS, Chief Judge.
Appellant appeals the sentence imposed pursuant to his negotiated plea of nolo contendere to the charge of tampering with a witness. The issues for review are the trial court's denial of аppellant's request to withdraw his plea when the court decided to impose a sentence greater than that contemрlated by the plea agreement, and the inclusion of a special condition in the written order of probation that was not pronounced at sentencing. We reverse.
The Plea, Waiver and Consent form signed by appellant and approved by the trial court contains the following provision:
17. I understand that the following special conditions apply to my sentence: Defendant entеrs his No Contest plea under the following conditions: He is to receive a sentence within the permitted guidelines sentence range Defendant falls within Nonstate Sanctions, and the Court agrees not to sentence Defendant to state prison time; Fine up to $5,000; court costs; public service work hours; adjudication of guilt within the court's discretion.
At the plea proceeding, defense counsel advised the trial court that her sentencing guidelines calculations placed appellant within the nonstate prison sanction rаnge. *491 Counsel further stated that the trial court had told her the court agreed not to sentence appellant to state prison, and that appellant understood that he might have to serve county jail time. The prosecutor confirmed that defense cоunsel accurately set forth the plea agreement.
The subsequent pre-sentence investigation report contained а notation that points for legal constraint had been scored due to an outstanding capias for a failure to appear in Alabama. When asked to review the final guidelines scoresheet at the sentencing hearing, appellant questioned the legal constraint points scored, stating it was his understanding that legal constraint meant probation. The trial court adjudicated appellant guilty, and sentenced him to three years incarceration in state prison, to be followed by two years probation. Defеnse counsel reminded the trial court that the plea agreement called for a nonstate prison sentence, stating that thе discrepancy between the informal presumed guidelines calculation and the calculation following preparatiоn of the pre-sentence investigation report was due to the legal constraint points. Counsel further stated that although she asked appellant if he was on probation, she did not inquire about a failure to appear. Finding that appellant agreed tо a sentence within the permitted guidelines range, the trial court denied appellant's request to withdraw his plea.
When the trial court determines that it cannot honor a plea agreement, the defendant must be afforded an opportunity to withdraw his plea. Evеn if the alteration in the proposed sentence was due to the defendant's failure to disclose his prior record, withdrawal of the plea must be an option if a sentence greater than that contemplated by the agreement is imposed. Johnson v. State,
In Johnson, the defendant disputed five convictions attributed to him under an alias. A subsequent fingerprint match established that he had five prior convictions. The five prior convictions raised his recommended guidelines sentence from community control to 2 1/2 to 3 1/2 years incarceration. The court noted that Johnson presumably knew the extent of his own prior record, so it could not be said that he was induced to enter his рleas by mistake or misunderstanding. However, because the trial court determined to impose a sentence greater than that сontemplated by the agreement, the court reversed the judgments and sentences, and remanded with directions to afford Johnson thе opportunity to withdraw his pleas.
The plea agreement in this case called for a guidelines sentence, which all partiеs assumed would be in the nonstate prison sanction sentencing range. The record reflects that appellant answered truthfully when аsked if he were on probation, and there was nothing to indicate that appellant deliberately concealed informаtion about a failure to appear. Moreover, the written plea agreement expressly contemplated a nоnstate prison sentence. In the circumstances, application of the rule articulated in Johnson v. State is required.
The state's reliance on Goff v. State,
The second issue concerns the inclusion of a special condition of probation in the written probation order that was not pronounced at sentencing. This issue is governed by Rowland v. State,
Paragraph ten of the written probation order in this case requires appellant to pаy one dollar per month to First Step, Inc., as directed by his probation officer. Since this provision was not pronounced by the triаl court at the sentencing proceeding, it was error to include it in the written order.
Accordingly, the judgment and sentence is reversed аnd remanded, with directions to afford appellant the opportunity to withdraw his plea, or for sentencing in accordance with the terms of the plea agreement. If probation is made a part of the resentencing disposition, the written probation order must conform to the trial court's oral pronouncement at the sentencing proceeding.
ERVIN and BARFIELD, JJ., concur.