JEORGIE JUPIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeorgie Jupin challenges his conviction for marijuana possession on double jeopardy grounds after the trial court accepted his no contest plea but later rejected it and proceeded to trial, resulting in a guilty verdict. The court reversed, holding that once a plea is accepted, it becomes binding and cannot be set aside without legal cause, and reinstatement of the plea violated the double jeopardy prohibition.
The trial court erred in setting aside the accepted plea without legal cause. Once a plea is accepted, it is binding and places the defendant in jeopardy; it cannot be set aside absent legal cause, and disagreement with the recommended sentence does not constitute legal cause. The double jeopardy violation makes the insufficiency of evidence argument unnecessary to address.
[1] When a trial judge determines that he cannot honor the terms of an earlier plea bargain, the defendant must be given the opportunity to withdraw his plea.
[2] A trial court errs in failing to give a defendant the opportunity to withdraw their plea once the court decides not to impose sentence in accordance with the plea bargain…
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Join FLexlaw to unlock all legal intelligence“Once the court accepts the plea, however, the defendant is placed in jeopardy as if he had pleaded guilty.”
Establishes that acceptance of a plea creates jeopardy protection preventing later withdrawal without legal cause.
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Join FLexlaw to unlock all legal intelligenceJupin was charged with marijuana possession on correctional institution grounds. After jury selection and swearing in, but before trial testimony, Jup…
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RYDER, Acting Chief Judge.
Jeorgie Jupin challenges his conviction for possession of marijuana on double jeopardy grounds and on the grounds that the state failed to prove constructive possession of the drugs. As will be explained below, our reversal based on the prohibition against double jeopardy makes it unnecessary to address Jupin’s point based on the sufficiency of the evidence at trial.
The state charged Jupin with possession of marijuana on the grounds of a correctional institution. After the lower court denied a motion to dismiss, the case went to trial on March 15, 1993 and a jury was impaneled. Two days later, the jury was sworn and the rule invoked. Before the first witness was called, the state attorney and Jupin reached a plea agreement. The agreement, announced to the court, was for Jupin to plead no contest to the information, reserving the right to appeal the denial of his dispositive motion to dismiss. The agreed-upon sentence was three years’ imprisonment, to run consecutively to any sentence he was then serving. Jupin was then sworn and the court conducted the plea colloquy. Satisfied that the plea was freely and voluntarily entered into, it accepted Jupin’s plea, but deferred sentencing until May 4, 1993, pending a presentence investigation. The court then dismissed the previously sworn jury, explaining that it had accepted a plea from Jupin. At the sentencing hearing, the judge rejected Jupin’s previously accepted plea and set the case for trial. The new jury returned a verdict of guilty as charged.
Acceptance of a nolo contendere plea is wholly within the trial court’s discretion. Once the court accepts the plea, however, the defendant is placed in jeopardy as if he had pleaded guilty. Johnson v. State, 460 So. 2d 954, 956 n. 1 (Fla. 5th DCA 1984); approved, 483 So. 2d 420 (Fla.1986). Here, the trial court conducted a plea colloquy, and concluded: “I’m going to find that your plea has been freely and voluntarily entered to this Court. And I’m going to accept that plea, that plea of no contest.” The trial court’s acceptance of Jupin’s plea was binding; it may not later set aside the accepted plea without legal cause. See State ex rel. Wilhoit v. Wells, 356 So. 2d 817 (Fla. 1st DCA), cert, denied, 359 So. 2d 1222 (Fla. 1978). The trial court’s change of mind, apparently based on its disagreement with the recommended sentence, is not legal cause. See Wilhoit, 356 So. 2d at 823. It erred when it set aside the previously accepted plea. By reinstating Jupin’s not guilty plea and proceeding with a trial, the lower court violated the prohibition against double jeopardy.1
Because the court erred when it set aside Jupin’s no contest plea, we hold that the plea is still in effect. We reverse the sentence the lower court imposed after trial and remand with directions to sentence Jupin to three years’ imprisonment, consecutive to any sentence he was serving at the time of the entry of the plea, in accordance with the plea agreement.
Reversed and remanded.
ALTENBERND and WHATLEY, JJ., concur. . Jupin also argues that he should be discharged because jeopardy attached when the first jury was sworn, citing State v. Kennon, 652 So. 2d 396 (Fla. 2d DCA 1995). Kennon is distinguishable because there the judge, after the jury was sworn, granted the defendant's motion to suppress and dismissed the case against him. See State v. Rhines, 435 N.W. 2d 542 (Minn.Ct.App. 1989). Here, the charge against Jupin has always remained pending. Moreover, Jupin retained primary control of the course of the proceedings when he chose to accept the state's offer of a plea bargain. He gave up his right to have his trial completed by a particular jury "in exchange for relief from the consequences which might have resulted from a disposition rendered by that tribunal." U.S. v. Baggett, 901 F. 2d 1546, 1549 (11th Cir.1990), cert, denied, 498 U.S. 862, 111 S.Ct. 168, 112 L.Ed.2d 133 (1990). In this situation, the fact that a juiy was previously sworn would not bar his retrial.
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Zamora v. State, 737 So. 2d 1165 (Fla. 2d DCA 1999)…t for time served. The trial court erred in allowing the State to withdraw its plea offer because jeopardy attaches once a trial court accepts a defendant’s plea. See Brown v. State, 367 So. 2d 616, 620-621 (Fla.1979) (guilty plea); Jupin v. State, 664 So. 2d 1031 (Fla. 2d DCA 1995) (nolo contendere plea). See also State ex rel. Wilhoit v. Wells, 356 So. 2d 817, 822 (Fla. 1st DCA 1978) (“[T]he court cannot accept such a plea [of guilty or nolo contendere], thus binding the accused, and then reject the plea ov…
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Pettis v. State, 803 So. 2d 903 (Fla. 1st DCA 2002)…Once the court had accepted the plea, it was binding and could only be set aside or withdrawn over defense objection for legal cause. See State ex rel. Wilhoit, 356 So. 2d at 822; Zamora v. State, 737 So. 2d 1165 (Fla. 2d DCA 1999); Jupin v. State, 664 So. 2d 1031 (Fla. 2d DCA 1995). We agree with appellant that no legal cause was demonstrated for setting aside the plea in that the judge had found the plea voluntarily entered in accordance with rule 3.172(c). We conclude that jeopardy attached when the trial…
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Green v. State, 784 So. 2d 1244 (Fla. 2d DCA 2001)…t sentencing hearing, the victim’s father objected to the negotiated sentence, and the trial court set aside the plea over Green’s objection. The State properly concedes that the trial court erred in setting aside Green’s plea. See Jupin v. State, 664 So. 2d 1031, 1031-32 (Fla. 2d DCA 1995) (holding that the trial court’s acceptance of a defendant’s no contest plea is binding and a plea may not be set aside without legal cause). Accordingly, we quash the trial court’s order setting aside Green’s plea and rem…
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
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- State ex rel. William M. C. Wilhoit v. Wells, 356 So. 2d 817 (Fla. 1st DCA 1978)
- Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)
- State v. Kennon, 652 So. 2d 396 (Fla. 2d DCA 1995)
- United States v. Baggett, 901 F.2d 1546 (11th Cir. 1990)
- Borrero v. United States, 498 U.S. 862 (U.S. 1990)
- Brawley v. Collins, 498 U.S. 862 (U.S. 1990)