ALICIO DUQUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's conviction and sentence reversed because he had an absolute right to withdraw his no contest plea to first degree murder prior to the court's formal acceptance, as the record showed the court had not yet formally accepted the plea and indicated further proceedings were needed.
A defendant has an absolute right to withdraw a plea prior to the court's formal and final acceptance of the plea.
[1] A defendant has an absolute right to withdraw a plea prior to the court's formal and final acceptance thereof under Florida Rule of Criminal Procedure 3.172(f).
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Join FLexlaw to unlock all legal intelligence“you might want to go some more on the colloquy, touch some bases and make sure that's what he wants to do”
Court's statement to defense counsel indicating further proceedings were needed before formal acceptance of the plea
Defendant entered a no contest plea to first degree murder. At the initial colloquy, the court indicated the plea would be accepted but then made stat…
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STONE, Judge.
The appellant’s conviction and sentence are reversed. The defendant attempted to withdraw his no contest plea to first degree murder prior to the court’s final and formal acceptance of the plea. The record reflects that, at the time of the initial colloquy, it was not clear whether the plea was or would be accepted by the court. After first indicating that the plea would be accepted, the court made several statements indicating that more would be done with respect to the plea prior to, and at, the sentencing hearing before the court would be satisfied that the defendant knew what he was doing. These statements included the court’s advising defense counsel “you might want to go some more on the colloquy, touch some bases and make sure that’s what he wants to do.” The court also stated that it may have had some other questions to satisfy the court that the defendant [knowingly] entered the plea, “that he is doing it freely and voluntarily and that he understands what he is doing....” The court further indicated that the state may have some questions to propound at the subsequent hearing, “so we know that he knows [what] he is doing.”
Therefore, pursuant to Florida Rule of Criminal Procedure 3.172(f) the defendant had an absolute right to withdraw the plea prior to its being formally accepted.
HERSEY, C.J., and GLICKSTEIN, J., concur.
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Calloway v. State, 658 So. 2d 1235 (Fla. 1st DCA 1995)…w it, the court erred by denying the request for withdrawal. See Fla.R.Crim.P. 3.172(f); Howard v. State, 516 So. 2d 81 (Fla. 1st DCA 1987); Hyde v. State, 405 So. 2d 445 (Fla. 1st DCA 1981), review denied, 412 So. 2d 466 (Fla.1982); Duque v. State, 582 So. 2d 126 (Fla. 4th DCA 1991); Bass v. State, 541 So. 2d 1336 (Fla. 4th DCA 1989); Harden v. State, 453 So. 2d 550 (Fla. 4th DCA 1984). Appellant’s conviction is therefore REVERSED and the case is REMANDED for further proceedings. ERVIN, LAWRENCE and VAN…