STATE OF FLORIDA, APPELLANT,
v.
DWIGHT VIELE, APPELLEE
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A trial court cannot modify a negotiated sentence and resentence contrary to an agreed-upon plea bargain without the state's approval.
Defendant acquiesced to a seven-year sentence based on a mistaken belief about gain time, rendering his plea invalid. The trial judge modified the sen…
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PER CURIAM.
The issue which we address is whether a trial court can modify a negotiated sentence and resentence contrary to an agreed upon plea bargain. The defendant acquiesced to a seven-year term because he thought he would receive gain time. He relied on his trial attorney for this assumption. Since his plea was based on a material mistake of law, the plea was invalid and the trial judge modified it. The state maintains that Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981) controls and the modified judgment and sentence should be set aside. We agree and reverse.
In Jolly, the defendant pleaded guilty to shooting into an occupied vehicle upon the understanding that the other counts would be nolle prossed and a minimum three-year sentence would be imposed. However, shooting into an occupied vehicle is not one of the enumerated offenses for imposition of the three-year minimum sentence, so the plea was invalid. Notwithstanding, the appellate court stated that the trial court erred in resentencing the defendant without the state’s approval. The Fifth District remarked:
Only a new plea negotiation or a trial can remedy the problem at this point. To let the plea and judgment stand would give the defendant the benefits of his bargain — i.e., a three-year sentence cap and dismissal of the other charge — and would deny the state what it bargained for: a mandatory three-year sentence.
* * * * *
If the plea negotiation is not binding upon the defendant, then it is not binding upon the state.
Id. at 56.
Despite the foregoing authority, the defendant cites Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983); however, Keller does not stand for the proposition that, without the state’s approval, a trial court can resen-tence in contravention of a plea bargain.
REVERSED AND REMANDED.
HERSEY, C.J., and LETTS and GUNTHER, JJ., concur.
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Bover v. State, 732 So. 2d 1187 (Fla. 3d DCA 1999)…he defendant to be resentenced.... Id. at 56; see also Skidmore v. State, 688 So. 2d 1014, 1015 (Fla. 3d DCA 1997); Hayes v. State, 598 So. 2d 135, 137 (Fla. 5th DCA 1992); State v. Spella, 567 So. 2d 1051, 1052 (Fla. 5th DCA 1990); State v. Viele, 559 So. 2d 1304, 1305 (Fla. 4th DCA 1990).…
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State v. Spella, 567 So. 2d 1051 (Fla. 5th DCA 1990)…nally, we agree with the state that, even if the defendant were to prevail on the double jeopardy argument, thus invalidating his conviction on Count V, the state would clearly be entitled to have the entire plea agreement set aside. State v. Viele, 559 So. 2d 1304 (Fla. 4th DCA 1990); Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981). REVERSED and REMANDED. DAUKSCH and COBB, JJ., concur.…
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Bernard v. State, 571 So. 2d 560 (Fla. 5th DCA 1990)…On remand, the parties stand released from their plea bargain. At its option, the state may renegotiate another agreement with the defendant within the statutory maximum, without reference to the habitual offender statute. See, e.g., State v. Viele, 559 So. 2d 1304 [*562] (Fla. 4th DCA 1990); Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981). Convictions AFFIRMED; sentences VACATED; REMANDED for further proceedings. DAUKSCH and GRIFFIN, JJ., concur. . § 775.084, Fla.Stat. (Supp.1988). . Section 775.084(l)(…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)
- Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983)