5D03-756 Paul Wagner v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D03-756

Case Date: 01/31/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2005

PAUL J. WAGNER, Appellant, v. Case No. 5D03-756 STATE OF FLORIDA, Appellee. / Opinion filed February 4, 2005 Appeal from the Circuit Court for Volusia County, R. Michael Hutcheson, Judge. James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee. SAWAYA, C.J. Paul Wagner appeals the judgments and sentences imposed after he entered an open plea of nolo contendere to the crimes of escape, resisting an officer with violence, and reckless driving. The specific issue we address is whether the trial court erred in denying Wagner's motion to withdraw his plea when the motion was based on the assertion that because the approximation of the minimum sentence at the time the plea was entered was

inaccurate, Wagner was prejudiced in seeking a downward departure sentence.1 Based on the particular facts and circumstances of the instant case, we conclude that the trial court did not err in denying Wagner's motion. Wagner rejected a plea offer from the State and chose to proceed to trial. The trial commenced and the jury was selected and sworn. It was at this time that Wagner chose to enter an open plea of nolo contendere to the court. The trial court engaged in an extensive plea colloquy with Wagner that complied with all of the requirements of rule 3.172(c), Florida Rules of Criminal Procedure. Specifically, Wagner was placed under oath, was advised of the rights that he waived by entering the plea, and was fully advised as to each specific factor listed in rule 3.172(c), including the maximum sentences that could be imposed by law. Wagner testified that he understood all of the rights he waived, the nature of the charges, and the maximum sentences for each of the crimes to which he pled. In addition, the trial court clearly explained to Wagner that the court could impose any sentence up to the previously specified maximum sentences for each charge and that there was no plea agreement that bound the court to any specific sentence. Wagner also testified that he understood this admonition. Although the trial judge did state what he thought the minimum sentence might be at

Wagner also raises the issue that he was sentenced without representation of counsel and that the court failed to conduct an adequate Faretta inquiry. See Faretta v. California, 422 U.S. 806 (1975). We disagree. The inquiry was sufficient, and we note that Wagner had counsel at the sentencing hearing and up to the time he was sentenced. At the sentencing hearing Wagner's attorney was allowed to withdraw because Wagner wanted another attorney to represent him. However, the attorney he wanted was not available to represent Wagner at that time. In any event, we conclude that the inquiry conducted by the trial court was sufficient and that Wagner was properly allowed to proceed through the sentencing hearing on his own. 2

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the time the plea was entered based on preliminary calculations, Wagner was advised that a scoresheet would have to be completed before a final minimum sentence could be calculated and that the minimum sentence could change. Sentencing was set for a later date.2 It was at sentencing that Wagner moved to withdraw his plea, claiming that the scoresheet calculations based on his criminal history, described by the trial court as "pretty lengthy," indicated a minimum sentence higher than previously discussed at the time he entered his plea. Specifically, Wagner complained that it was his intention to seek a downward departure sentence and that because the minimum scoresheet calculation was higher than was originally estimated by the trial court, he was misled into thinking that he would receive a downward departure sentence. After a hearing, the trial court denied Wagner's motion to withdraw his plea. The circumstances under which a defendant may withdraw a plea are governed by Florida Rule of Criminal Procedure 3.170, which provides that a "court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn." Fla. R. Crim. P. 3.170(f).3 Here, because Wagner moved to withdraw his plea

Prior to the date of the hearing on the motion to withdraw and sentence imposition, the trial court attempted to set a sentencing date, which was continued because Wagner needed extra time to determine whether he had grounds to dispute any of his prior convictions. We note, as did the trial court at the hearing on the motion to withdraw, that Wagner never presented any grounds to legitimately dispute his rather extensive criminal record. The court in State v. Partlow, 840 So. 2d 1040 (Fla. 2003), held that if the motion to withdraw is made after sentencing, the provisions of rule 3.170(l) govern the trial court's determination. The court explained: Rule 3.170( l ) applies to motions to withdraw filed after 3
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prior to sentencing, it was Wagner's burden to establish good cause to set aside the plea under the rule. See Gunn v. State, 841 So. 2d 629 (Fla. 2d DCA 2003); Brown v. State, 428 So. 2d 369 (Fla. 5th DCA 1983); Adler v. State, 382 So. 2d 1298 (Fla. 3d DCA 1980). "Good cause has been found to exist where the defendant demonstrates `that his previously tendered guilty plea was infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.'" Davis v. State, 783 So. 2d 288, 289 (Fla. 5th DCA 2001) (quoting Onnestad v. State, 404 So. 2d 403, 405 (Fla. 5th DCA 1981)). Good cause must be established within the context of the record. See Collins v. State, 858 So. 2d 1197 (Fla. 4th DCA 2003). Moreover, "[i]n order to show cause why the plea should be withdrawn, mere allegations are not enough; the defense must offer proof that the plea was not voluntarily and intelligently entered." Robinson v. State, 761 So. 2d 269, 274 (Fla. 1999), cert. denied, 529 U.S. 1057 (2000) (citations omitted).

sentencing. In contrast to subdivision (f), this provision allows withdrawal of a plea only on the limited grounds listed in Florida Rule of Appellate Procedure 9.140(b). Such grounds include lack of subject matter jurisdiction, violation of the plea agreement, and involuntariness of the plea. Moreover, once sentence has been imposed, to withdraw a plea a defendant must demonstrate a manifest injustice requiring correction. See Lopez v. State, 536 So. 2d 226, 229 (Fla. 1988). Because Partlow filed his motion after sentencing, subdivision (l), not subdivision (f), of rule 3.170 applies. Therefore, to obtain permission to withdraw his plea, Partlow had to show that failure to inform him of the sexual offender registration requirement rendered his plea involuntary. Id. at 1042 (footnote omitted). 4

The trial courts are bestowed with the discretion to determine whether good cause has been established or to grant a plea withdrawal in the absence of good cause.4 The courts of this state have found this discretion in determining whether to grant or deny a motion to withdraw a plea to be rather broad.5 "A trial court abuses its discretion `only where no reasonable man would take the view adopted by the trial court.'" Sims v. State, 869 So. 2d 45, 47 (Fla. 5th DCA 2004) (quoting Nolte v. State, 726 So. 2d 307, 309 (Fla. 2d DCA 1998)). On appeal, the defendant has the burden of showing that the trial court abused its broad discretion in denying the motion to withdraw the plea and unless that burden is met, the trial court's ruling must be affirmed.6 Turning to the issue whether the trial court abused its discretion in finding that Wagner failed to establish good cause to set aside his plea, the transcript of the plea colloquy belies the argument made by Wagner that he was misadvised that he would receive a belowguidelines sentence. The trial court specifically advised Wagner before his plea was accepted that:

Elam v. State, 636 So. 2d 1312 (Fla. 1994) (maintaining that trial court has discretion to determine good cause); Collins v. State, 858 So. 2d 1197 (Fla. 4th DCA 2003); Davis v. State, 783 So. 2d 288, 289 (Fla. 5th DCA 2001) ("The trial court did not abuse its discretion in concluding that Davis failed to sustain his burden of proving good cause . . . ."). See Partlow, 840 So. 2d at 1042 (stating that under rule 3.170(f), "a trial court plainly has broad discretion in determining motions to withdraw a plea.") (citations omitted); Hunt v. State, 613 So. 2d 893 (Fla. 1992); Davis. Robinson v. State, 761 So. 2d 269 (Fla. 1999); Taylor v. State, 852 So. 2d 371 (Fla. 5th DCA 2003) ("Unless an abuse of that discretion is shown, the determination not to allow the plea to be withdrawn must be affirmed.") (citing Davis); Davis 783 So. 2d at 289 (citing Lopez v. State, 536 So. 2d 226, 229 (Fla. 1988); Costello v. State, 260 So. 2d 198, 200 (Fla. 1972)). 5
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The Court: And your attorney did at side bar indicate at this point he doesn't feel there are any legal grounds for me to depart downward. You understand all that? The Defendant: Yes, sir. At this point Wagner and his attorney, Mr. Hartley, conferred and the following discussion took place: Mr. Hartley: Okay. What I've explained to my client is that downward departure issue, if indeed there are legal issues of downward departure, is completely the Court's discretion. The Court: Do you understand--now that your attorney has talked to you, do you understand that? The Defendant: Yes, sir. Thus, not only did Wagner testify under oath that he understood that he could receive a sentence up to the statutory maximum, he was also advised that his attorney knew of no legal grounds to depart downward from the guidelines. The courts have clearly established that unless proper and sufficient grounds are presented, the trial court may not impose a downward departure sentence. State v. Stanard, 859 So. 2d 572 (Fla. 5th DCA 2003). Wagner was further advised that even if such grounds did exist, the trial court had discretion whether to impose a downward departure sentence. We reject Wagner's argument that failure to accurately advise him of the minimum sentence prejudiced his intended request for a downward departure sentence when he was advised that there were no grounds for departure and that even if there were, the matter was purely discretionary with the trial court. Moreover, Wagner entered an open plea to the court. An open plea is not made pursuant to a plea agreement with the state, and the defendant is given no assurance of what

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sentence he will receive when sentenced. See Brown v. State, 585 So. 2d 350 (Fla. 4th DCA 1991). When a defendant enters an open plea, he or she indicates "a willingness to accept anything up to and including the maximum possible sentence." Simmons v. State, 611 So. 2d 1250, 1253 (Fla. 2d DCA 1992). During the plea colloquy, Wagner was advised by the trial court that he could receive any sentence up to the maximum sentence allowed by law, and he was advised what the maximum sentences were for each offense to which he pled. We believe the decision in Vitiello v. State, 609 So. 2d 111 (Fla. 4th DCA 1992), is analogous to the instant case and very instructive. In Vitiello, the defendant sought reversal of his conviction and sentence imposed after he pled guilty on the grounds that the plea was not entered voluntarily or with an understanding of the consequences. Specifically, he argued that the recommended and permitted ranges calculated by the prosecutor at the time the plea was entered were lower than the ranges reflected on the scoresheet prepared for sentencing. In rejecting that argument, the court stated: At the plea conference appellant entered what his counsel described as an "open" guilty plea, that is, there was no agreement as to a definitive sentence for any of the offenses, other than that the sentences would be within either the recommended or permitted range of the sentencing guidelines, as reflected on the scoresheet to be computed after the court had been furnished a presentence investigation. The prosecutor expressed the belief that the guidelines, when computed, would show 12 to 17 years as the recommended range and 9 to 22 years as the permitted range. However, in response to the court's inquiry, appellant acknowledged his understanding that the plea as entered would allow the court to sentence within either the recommended or permitted guideline ranges, even if those ranges were higher than what the prosecutor believed they would be. The record clearly refutes appellant's claim that his guilty plea was entered without an understanding of the consequences. 7

Id. at 111-12. Similarly, in the instant case, the record clearly refutes Wagner's claim that he entered his plea without understanding the consequences. We note that the trial court was not required to advise Wagner at the time of the plea of the minimum sentence provided by the Criminal Punishment Code scoresheet.7 Florida Rule of Criminal Procedure 3.172, adopted from Federal Rule of Criminal Procedure 11(c),8 governs the taking of pleas in criminal cases. See Koenig v. State, 597 So. 2d 256 (Fla. 1992). When accepting a plea, rule 3.172(c)(1), Florida Rules of Criminal Procedure, requires that the trial court determine that the defendant understands "the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law." Rule 11(c) has identical requirements. Neither rule requires a defendant be advised of the minimum sentence. Because rule 3.172 was adopted from federal rule 11(c), it is helpful to turn to federal decisions that explain why advisement of the minimum sentence has never been a requirement of the rule.9 In 1998, the Legislature enacted the Criminal Punishment Code, which provides that the maximum prison sentence is never less than the statutory maximum and the minimum sentence is determined by very similar calculations under the prior sentencing guidelines with provisions for a downward departure sentence. See

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