McCollun v. StateMcCollun v. State
Appellant appeals the sentence imposed pursuant to his negotiated plea of nolo contendere to the charge of tampering with a witnеss. The issues for review are the trial court‘s denial of appellant‘s request to withdraw his plea when the court decided to impоse a sentence greater than that contemplated 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 сonditions apply to my sentence: Defendant enters 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 placеd appellant within the nonstate prison sanction range.
The subsequent prе-sentence investigation report contained a 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 рrison, to be followed by two years probation. Defense counsel reminded the trial court that the plea agreement cаlled for a nonstate prison sentence, stating that the discrepancy between the informal presumed guidelines calculatiоn and the calculation following preparation 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 tо appear. Finding that appellant agreed to 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 defendаnt must be afforded an opportunity to withdraw his plea. Even 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, 547 So.2d 238, 239-240 (Fla. 1st DCA 1989).
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 recоrd, so it could not be said that he was induced to enter his pleas by mistake or misunderstanding. However, because the trial court determinеd to impose a sentence greater than that contemplated by the agreement, the court reversed the judgments and sentеnces, and remanded with directions to afford Johnson the opportunity to withdraw his pleas.
The plea agreement in this case сalled for a guidelines sentence, which all parties assumed would be in the nonstate prison sanction sentencing range. The reсord reflects that appellant answered truthfully when asked if he were on probation, and there was nothing to indicate that aрpellant deliberately concealed information about a failure to appear. Moreover, the written pleа agreement expressly contemplated a nonstate prison sentence. In the circumstances, application оf the rule articulated in Johnson v. State is required.
The state‘s reliance on Goff v. State, 498 So.2d 1035 (Fla. 1st DCA 1986) and Goene v. State, 577 So.2d 1306 (Fla. 1991), is misplaced. In Goff, the agreement contemplated a guidelines sentence, but no specific term was ever mentioned. Here, as in Johnson, the negotiated guidelines sentence expressly referenced a more specific sentencing disposition. Likewise, there was no plea conditioned upon a specific sentence in Goene. Goene had to do with inaccurate representаtions made to the court upon which a sentence was based, without reference to the entry of a plea.
The second issue concerns the inclusion of a special condition of probation in the written probation order that was not pronоunced at sentencing. This issue is governed by Rowland v. State, 548 So.2d 812, 814 (Fla. 1st DCA 1989), where the court reiterated the rule that “[t]he inclusion of special conditions of probation in a written order that were not orally pronounced at the sentencing hearing mandate a reversal and remand for correction of the written order to conform to the oral pronouncement.” See also Smith v. State, 558 So.2d 534 (Fla. 1st DCA 1990);
Paragraph ten of the written probation оrder in this case requires appellant to pay one dollar per month to First Step, Inc., as directed by his probation officеr. Since this provision was not pronounced by the trial court at the sentencing proceeding, it was error to include it in the written ordеr.
Accordingly, the judgment and sentence is reversed and 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.