CLEVELAND HILL, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cleveland Hill, Jr. appeals the denial of his Rule 3.850 motion for postconviction relief seeking to withdraw his guilty plea to worthless check fraud. The appellate court found that the trial court violated the plea agreement by imposing a $2,500 fine at sentencing that was never mentioned at the plea hearing, and reversed and remanded for the trial court to either strike the fine or allow withdrawal of the plea.
The appellate court held that the trial court departed from the terms of the plea bargain by imposing the $2,500 fine without prior notice or discussion at the plea hearing. The court reversed and remanded with directions that the trial court either strike the $2,500 fine or allow appellant the opportunity to withdraw his guilty plea.
[1] A trial court departs from a plea bargain when it imposes a condition, such as a fine, that was not mentioned during the plea colloquy.
[2] A defendant may be entitled to withdraw a guilty plea when the trial court imposes a condition not included in the original plea agreement.
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Establishes the core finding that violated the plea agreement
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to obtaining property in return for a worthless check pursuant to a plea agreement. At the plea hearing, the trial court anno…
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[*651] BOARDMAN, Judge.
Cleveland Hill, Jr., appeals the trial court’s denial of his motion for postconviction relief filed pursuant to rule 3.850, Florida Rule of Criminal Procedure. We reverse and remand.
Pursuant to a plea agreement, appellant pled guilty to obtaining property in return for a worthless check and was adjudicated guilty and placed on probation for three years, with the special conditions that he serve ninety days in jail and pay restitution and other specified costs.
Appellant’s motion for postconviction relief seeks withdrawal of his guilty plea on the grounds that (1) the trial court failed to comply with the sentencing portion of the plea agreement, and (2) appellant misunderstood the conditions of the proffered plea bargain and believed that his probationary period would be limited to one year. The record setting forth appellant’s plea colloquy refutes his contention that he misunderstood the conditions of the proposed probationary period, but we find merit in his assertion that the trial court departed from the plea bargain.
The record shows that at the plea hearing, the trial court announced its intention to impose probation, possible jail time, restitution, and costs of probation. At the subsequent sentencing hearing, however, the court imposed an additional condition that appellant pay a $2500 fine which had not been mentioned at the earlier plea hearing, which fine was to defer the cost of appellant’s incarceration.1 Appellant objected that he could not then pay the $2500 fine and was informed by the trial court that he would be given the first two years of his probationary period within which to make payment.
When presented with appellant’s rule 3.850 motion protesting the above departure from the plea bargain, the trial court held a nonevidentiary hearing and denied postcon-vietion relief on the basis of the court’s own recollection of appellant’s presentence negotiations and plea colloquy. The court expressed the belief that the transcript of these negotiations reflected discussion of the $2500 fine.
Our review of the record discloses no reference to the challenged fine at the plea hearing. Therefore, we submit that the trial court departed from the terms of the plea bargain in imposing the $2500 fine.
Accordingly, we REVERSE and REMAND to the trial court with directions to either strike the $2500 fine or allow appellant the opportunity to withdraw his guilty plea. Davis v. State, 308 So. 2d 27 (Fla.1975); Newberry v. State, 421 So. 2d 546 (Fla. 4th DCA 1982), voluntarily dismissed, 426 So. 2d 27 (Fla.1983); Freeman v. State, 376 So. 2d 294 (Fla. 2d DCA 1979).
OTT, C.J., and DANAHY, J., concur. . The order of probation directs appellant to pay “$250.00 to the Sheriff of Pinellas County to be deposited into the Pinellas County General Fund for general county purposes within 2 years of this date.” Because the $2500 fine orally assessed against appellant at sentencing was also payable within two years of its imposition, we presume this $250 amount to be an incorrect transcription of the original $2500 fine.
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Citator
Cited By
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Green v. State, 700 So. 2d 384 (Fla. 1st DCA 1997)…victed of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in s. 775.082” and specifies that a fine for a first or second degree felony conviction may not exceed $10,000. In Hill v. State, 441 So. 2d 650 (Fla. 2d DCA 1983), Hill pled guilty and was sentenced pursuant to his plea bargain except that the court also imposed a $2500 fine, which was not included in the terms of the bargain. Finding that the “trial court departed from the terms of the ple…
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Devard v. State, 504 So. 2d 28 (Fla. 2d DCA 1987)…nce of five years. If in fact there was a plea agreement, it either should have been honored, or, if for some reason the court could no longer accept the agreement, Devard should have been afforded an opportunity to withdraw the plea. Hill v. State, 441 So. 2d 650 (Fla. 2d DCA 1983). Coy v. State, 404 So. 2d 135 (Fla. 4th DCA 1981). Compare Brimmer v. State, 462 So. 2d 29 (Fla. 1st DCA 1984) (record demonstrated waiver of plea agreement by defendant). Upon remand the trial court may again deny the motion if…
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Shelton v. State, 936 So. 2d 680 (Fla. 5th DCA 2006)…o. 2d 384 (Fla. 1st DCA 1997). Accord [*682] ingly, we reverse with directions that the trial court either strike the probationary term or allow Shelton the opportunity to withdraw his nolo plea. See Green, 700 So. 2d at 388; see also Hill v. State, 441 So. 2d 650, 651 (Fla. 2d DCA 1983) (reversing with instructions to strike the $2,500 fine, which exceeded the plea agreement, or offer the opportunity to withdraw plea). We also note the sentence should be modified to reflect the 138.15-month sentence Shelton…
Authorities Cited
- Vikki Zimmerman Davis v. State, 308 So. 2d 27 (Fla. 1975)
- Freeman v. State, 376 So. 2d 294 (Fla. 2d DCA 1979)
- Newberry v. State, 421 So. 2d 546 (Fla. 4th DCA 1982)