JEANENE RETCHO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeanene Retcho was convicted of felony driving with a suspended license based on predicate offenses. After one predicate conviction was vacated, she sought to withdraw her plea, but the trial court denied relief by relying on an additional predicate conviction not mentioned in the charging information. The appellate court reversed, holding that the trial court's reliance on an unmentioned predicate conviction deprived the defendant of the opportunity to challenge its validity.
The court reversed and remanded, holding that the trial court abused its discretion by relying on an additional predicate conviction not mentioned in the information, which deprived the defendant of the opportunity to challenge that conviction. The court concluded that justice and fairness required that the defendant be allowed to withdraw her plea.
[1] A trial court abuses its discretion by relying on a predicate offense not included in the charging information when determining a defendant's eligibility for a plea withd…
[2] A defendant is deprived of the opportunity to challenge the validity of a conviction when the trial court relies on that conviction without it being properly presented in…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court's reliance on the additional predicate offense not mentioned in the information deprived the Defendant of an opportunity to challenge said offense”
States the core legal principle that a defendant must have notice and opportunity to challenge any conviction used as a predicate
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Join FLexlaw to unlock all legal intelligenceIn April 1998, Retcho pled no contest to felony driving with a suspended license and was sentenced to eighteen months probation. In July 1998, after t…
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PER CURIAM.
The Defendant was charged with felony driving with a suspended license in violation of section 322.34 of the Florida Statutes. She filed a motion to vacate her plea and/or post-conviction relief, and/or petition for writ of error coram nobis, which the trial court denied. We reverse and remand.
In April 1998, the Defendant pled no contest and was sentenced to eighteen months probation. In July 1998, after the time for a timely appeal, one of the predicate driving with a suspended license convictions was vacated. The Defendant filed a motion for post-conviction relief, seeking to withdraw her plea based on the vacation of one of the predicate offenses, but the trial court denied the motion relying on an additional predicate offense not mentioned in the information. On appeal, the Defendant argues that the trial court’s reliance on an additional predicate conviction not mentioned in the information deprived her of the right to rebut or challenge the validity of the additional conviction. We agree and reverse.
In Batchelor v. State, 729 So. 2d 956 (Fla. 1st DCA 1999), the defendant asserted an error was made on his sentencing score-sheet by scoring a conviction for which he had been acquitted. See id. at 958-59. The state conceded the error, but offered certified copies of additional convictions, which would, upon recalculation of the scoresheet, result in a sentencing score at least as high as the sentence being appealed. See id. The trial court took judicial notice of the additional convictions and imposed sentence. See id. The First District reversed, concluding reliance on the additional convictions deprived the defendant of an opportunity to challenge the propriety of using the additional convictions. See id.
Likewise, we conclude in the present case that the trial court’s reliance on the additional predicate offense not mentioned in the information deprived the Defendant of an opportunity to challenge said offense. Although a trial court has discretion in determining whether to allow the withdrawal of a guilty plea, see Hunt v. State, 613 So. 2d 893, 896 (Fla.1992), a withdrawal should be permitted where justice and fairness so require, see Macker v. State, 500 So. 2d 256, 258 (Fla. 3d DCA 1986). Here, because justice and fairness require that the Defendant be allowed to withdraw her plea, the trial court abused its discretion. Accordingly, we reverse and remand.
REVERSED and REMANDED.
GUNTHER, GROSS and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Deidre Michelle Hunt v. State, 613 So. 2d 893 (Fla. 1992)
- Batchelor v. State, 729 So. 2d 956 (Fla. 1st DCA 1999)
- Lamb v. Hoyt L. Lamb, 500 So. 2d 256 (Fla. 1st DCA 1986)