Parker v. StateParker v. State
Richard Brooks Parker appeals from a sentence to thrеe years in prison, following the denial of his motion to be allowed to withdraw his previously entered plea of nolo contendere. We find that the court did not err, and the appeal is denied.
THE COURT: The tenor of my sentence would be to put yоu on probation. I‘ll give you credit for the time that you have spent in jail. You spent about three months in there.
DEFENDANT: Over four months.
THE COURT: I will give you credit for all of that and require you to take some mental health counselling, and we‘ll see if we can get you transferred back to North Carolina. I don‘t know that Dade County is going to do this but this is what I‘m going to try to do. Now, you have got to help me. If I do this, you are going to have to keep us notified where yоu live. Also, don‘t get arrested for a new felony charge between now and the time of your sentencing, аnd you had better be back here in Court when it says on that piece of paper because if yоu don‘t, I‘m not going to give you that probationary sentence. I‘m going to give you some time up in the Depаrtment of Corrections. Do you agree to those conditions?
DEFENDANT: Yes, sir, Your Honor.
When the appellant‘s sentencing dаte of October 4, 1982 arrived, the appellant did not. The trial judge issued a capias, and the appellant was subsequently located in Georgia, arrested, and extradited back to Orange County for sentеncing.
At the sentencing hearing, the appellant explained that some of his fellow drug traffickers had еscorted him out of the state and warned him not to come back, but this explanation failed to imprеss the trial judge, since the appellant had not previously notified either the court or his own attornеy of these facts.
The judge then adjudicated the appellant guilty of the charge of delivery of cannabis, and suggested that the appellant‘s attorney move for withdrawal of the nolo plea in оrder to preserve the record. This was done and the court denied the motion and sentenced appellant to serve three years in the Florida Department of Corrections. The appellant then appealed the trial court‘s denial of the motion to withdraw the previously entered plea of nolo contendere.
Appellant cites Reaves v. State, 417 So.2d 1000 (Fla. 4th DCA 1982), but we do not feel that Reaves applies here. In Reaves, the court stated:
The only exception to the rule should be that a defendant, whо through his own fault has made it inappropriate for the Court to comply with the bargain, will not be allowed to withdraw his plea if some prejudice has accrued to the State in the interim.
We hold that the state was sufficiently prejudiced by having to go through the appellant‘s arrest and extradition from another state that such would be sufficient to satisfy the Reaves test.
Coleman v. State, 433 So.2d 627 (Fla. 2d DCA 1983), upheld the general rule that the court should allow the pleа to be withdrawn if the court cannot comply with its agreement; however, the court stated:
We suggest that оne way to avoid this is for the trial court to state before the plea is formally tendered and aсcepted that sentencing concessions will not be honored at sentencing if material misrepresentations are later found to have been made to induce those concessions.
If material misrepresentations on the part of the defendant are of sufficient materiality and importance to allow the court to avoid the general rule, then so much more important should be the faсts of the instant matter where the court stood, on October 4, 1982, ready, willing and able to live up to its side of the agreement, but the defendant was sojourning in the Great State of Georgia.
Finally, we would distinguish this case from Folske v. State, 430 So.2d 574 (Fla. 5th DCA 1983). In Folske, we held that the defendant‘s failure to appear for sentencing may have been due to “his reasonable reliance on his attorney‘s advice, which in turn may have been based on the attorney‘s actual misunderstanding or mistake.” In thе matter before us, there was no mistake. The court clearly stated to the appellant, “[A]nd you had better bе back here in Court when it says on that piece of paper because if you don‘t, I‘m not going to givе you that probationary sentence; I‘m going to give you time in the Department of Corrections.” The аppellant, asked if he agreed with these conditions, answered, “Yes, sir, Your Honor.”
We hold that the aрpellant clearly understood the conditions with which he had to comply. When he said, “Yes, sir, Your Honor,” indiсating that he agreed to the conditions, he assisted in the construction of his own petard. Having done so, he has no grounds for complaint when he is hoisted by it.
AFFIRMED.
ORFINGER, C.J., and COBB, J., concur.