JAVARO K. THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Javaro K. Thomas appealed the denial of his motion to withdraw a nolo contendere plea to multiple felonies. The court affirmed the denial of the withdrawal motion but remanded for resentencing because the trial court failed to comply with statutory requirements for sentencing a juvenile as an adult.
The court affirmed the denial of the motion to withdraw plea because Thomas failed to demonstrate prejudice or manifest injustice and the record showed the plea was voluntarily and intelligently entered. However, the court remanded for resentencing because the trial court violated section 39.059(7) by sentencing Thomas as an adult without proper statutory compliance.
[1] A defendant seeking to withdraw a plea must demonstrate prejudice or manifest injustice.
[2] A plea is considered voluntarily and intelligently entered when the record supports such a conclusion.
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Join FLexlaw to unlock all legal intelligence“To prevail on his motion to withdraw plea, Thomas must demonstrate prejudice or manifest injustice.”
Establishes the legal standard for withdrawing a guilty plea in Florida.
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Join FLexlaw to unlock all legal intelligenceOn August 21, 1992, Thomas was charged with robbery, armed burglary, attempted first-degree murder, grand theft, and carrying a concealed weapon. On N…
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QUINCE, Judge.
Javaro K. Thomas appeals the denial of his motion to withdraw plea. We affirm the denial of the motion, but remand for resentencing pursuant to section 39.059(7), Florida Statutes (1991).
On August 21, 1992, Thomas was charged by information with robbery, armed burglary, attempted first-degree murder, grand theft, and carrying a concealed weapon. On November 3, 1992, he was charged with sale and possession of cocaine. On October 28, 1993, Thomas entered a written plea of nolo contendere in exchange for a sentence of forty years prison, with the understanding that the concealed firearm charge would be dropped. Thomas acknowledged that he understood the plea form, that the sentence would include a three-year minimum mandatory term, that he had discussed the case with his attorney, and that he was satisfied with his attorney’s representation.
On December 21, 1993, Thomas filed a motion to withdraw plea. In his motion, Thomas argued that at the time he entered the plea, he was confused and did not understand the significance of the plea. At the hearing on the motion, Thomas testified that at the time of the plea he was “going through a lot of stress,” and now “just [thought he] made the wrong decision.”
To prevail on his motion to withdraw plea, Thomas must demonstrate prejudice or manifest injustice. Williams v. State, 316 So. 2d 267 (Fla.1975); Freber v. State, 638 So. 2d 140, 141 (Fla. 4th DCA 1994). He has not met that burden here. The record supports the trial court’s conclusion that the plea was voluntarily and intelligently entered. Cf. Freber, 638 So. 2d at 141.
In sentencing Thomas as an adult, however, the trial court failed to comply with the requirements of section 39.059(7). The state argues sentencing as an adult was appropriate under section 39.022(5)(d), Florida Statutes (1991)1 because Thomas had been sentenced as an adult on some traffic offenses in October 1992. The offenses which are the subject of this appeal occurred in February and August 1992. The plea to the traffic offenses occurred in October 1992. The present offense, therefore, occurred pri-or to appellant being “found to have committed” the other offenses. Thus, the present offenses are not subsequent violations of Florida law under section 39.022(5)(d). Ka~ zakoff v. State, 642 So. 2d 596 (Fla. 2d DCA 1994). On remand, the court may again sentence Thomas as an adult, provided that section 39.059(7) is strictly complied with, taking into consideration the conditions existing at the time of the original sentencing. Tharp v. State, 648 So. 2d 229 (Fla. 2d DCA 1994).
Accordingly, we affirm the denial of the motion to withdraw plea, and remand for resentencing.
SCHOONOVER, A.C.J., and PATTERSON, J., concur. . Section 39.022(5)(d) provides: Once a child has been transferred for criminal prosecution pursuant to a voluntary or an involuntary waiver hearing or information and has been found to have committed the offense for which he is transferred or a lesser included offense, the child shall thereafter be handled in every respect as of he were an adult for any subsequent violation of Florida law, unless the court, pursuant to this paragraph, imposes juvenile sanctions under s. 39.059(6).
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Jonas v. State, 683 So. 2d 551 (Fla. 2d DCA 1996)…A should be reduced to ten years. Jonas’s other arguments are without merit. The failure to dismiss the petit theft charge [*552] does not constitute manifest injustice such that Jonas should be permitted to withdraw his plea. See Thomas v. State, 657 So. 2d 51 (Fla. 2d DCA1995). Reversed and remanded for the correction of sentences. PARKER and FULMER, JJ., concur.…
Authorities Cited
- Williams v. State, 316 So. 2d 267 (Fla. 1975)
- Kazakoff v. State, 642 So. 2d 596 (Fla. 2d DCA 1994)
- Freber v. State, 638 So. 2d 140 (Fla. 4th DCA 1994)
- Tharp v. State, 648 So. 2d 229 (Fla. 2d DCA 1994)