ZAVON PALMORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Zavon Palmore appealed his sentence after the trial court determined he willfully violated his plea agreement by failing to appear for sentencing. The appellate court reversed, holding that the trial court failed to make the required factual determination of whether Palmore's absence was willful before imposing a harsher sentence.
The court reversed and remanded, holding that when timely appearance is a condition of a plea agreement, a trial court must make a factual determination as to whether a defendant's failure to appear was willful before ruling that the absence violates the plea agreement and permits imposition of a greater sentence. The trial court's mere statement that it was sentencing based on the failure to appear, without establishing willfulness, is insufficient.
[1] A non-willful failure to appear for sentencing, when timely appearance is a condition of a plea agreement, does not vitiate the agreement and permit the trial court to im…
[2] A trial court must make a factual determination as to whether a defendant's failure to appear at sentencing was willful before ruling on whether the absence violated a ne…
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Join FLexlaw to unlock all legal intelligence“Where timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.”
Establishes the governing legal standard that only willful failures to appear violate plea agreements
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Join FLexlaw to unlock all legal intelligencePalmore pleaded guilty to possession of crack cocaine, use of a firearm in a felony, and misdemeanor marijuana possession. The plea agreement required…
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Appellant, Zavon Palmore, is challenging the trial court’s determination that he willfully violated the terms of his plea agreement. Because the evidence was insufficient to establish Appellant willfully failed to appear for sentencing, we reverse.
Facts
The State charged Appellant-with possession of crack cocaine, use of a firearm in the commission of a felony, and misdemeanor possession of marijuana. In exchange for Appellant’s guilty plea, the State agreed to seek a sentence that included a withhold of adjudication, 36 months probation, and 60 days incarceration in county jail. During a plea hearing, the trial court made its acceptance of the plea agreement contingent on Appellant’s agreement to appear at a January 11, 2011, sentencing hearing.
On January 9, 2011, Appellant was arrested in a nearby county for committing new, unrelated charges. Because of his arrest and subsequent incarceration, he was unable to attend the January 11, 2011, sentencing hearing. At the rescheduled hearing, the trial court determined Appellant was no longer entitled to the sentence proposed in his negotiated plea and sentenced him to 18 months in prison. The court based the sentence on “the fact that [Appellant] failed to appear for sentencing.” The only evidence the court heard regarding Appellant’s January arrest was a statement from the State, indicating it had contacted the nearby county’s jail “and received information that on January the 9th, [Appellant] was booked into the [county jail] and was charged with burglary and grand theft.”
Analysis
“Where timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.” Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987)). It has been repeatedly held that it is crucial a trial court make a factual determination as to whether a defendant’s failure to appear at sentencing was willful, prior to ruling on whether said absence was violative of a negotiated plea agreement. See Neeld v. State, 977 So.2d 740, 745 (Fla. 2d DCA 2008).
Here, the trial court was required to make a factual determination as to whether Appellant’s failure to appear was willful. See Id. (concluding a circuit court cannot declare that a defendant willfully violated the terms of his plea agreement in the absence of competent, substantial evidence to support such a finding); see also Walker v. State, 599 So.2d 233, 234 (Fla. 3d DCA 1992) (reversing a trial court’s finding that a defendant violated the terms of his plea agreement because insufficient evidence was presented to support the finding). Instead, the court merely indicated it was sentencing Appellant to a longer prison term “[b]ased on the fact that [he] failed to appear for sentencing.”
Accordingly, we reverse and remand for the trial court to make a factual determination as to whether Appellant’s failure to appear was willful.
REVERSED.
HAWKES, CLARK, and SWANSON, JJ., concur.
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Citator
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Hawkins v. State, 138 So. 3d 1196 (Fla. 2d DCA 2014)…termination as to whether a defendant’s failure to appear at sentencing was willful, prior to ruling on whether said absence was violative of a negotiated plea agreement. See Neeld v. State, 977 So. 2d 740, 745 (Fla. 2d DCA 2008). Palmore v. State, 82 So. 3d 1004, 1005 (Fla. 1st DCA 2011); see also Gee v. State, 38 So. 3d 806, 807 (Fla. 2d DCA 2010) (noting same); Peacock v. State, 77 So. 3d 1285, 1288 (Fla. 4th DCA 2012) (noting same). If a defendant’s failure to appear is beyond his control, only in the m…
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Howell v. State, 250 So. 3d 805 (Fla. 2d DCA 2018)…This court has explained that "a non-willful failure to appear will not vitiate [such an] agreement and permit the trial court to impose some greater sentence." Hawkins v. State, 138 So. 3d 1196, 1200 (Fla. 2d DCA 2014) (quoting Palmore v. State, 82 So. 3d 1004, 1005 (Fla. 1st DCA 2011)). And "[w]here a defendant's failure to appear is found to be non-willful, the defendant is entitled to the bargained-for mitigation of his or her sentence." Id. (quoting Peacock v. State, 77 So. 3d 1285, 1288 (Fla. 4th…
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Cooper v. State, 251 So. 3d 316 (Fla. 1st DCA 2018)…d his sentence without expressly determining whether his failure to appear was willful. In Palmore v. State, we recognized that a non-willful failure to appear doesn’t vitiate a plea agreement, nor allow the trial court to impose a greater sentence. 82 So. 3d 1004, 1005 (Fla. 1st DCA 2011). To increase a sentence, we held that the trial court must make a factual determination as to whether a defendant’s failure to appear was willful. Id. That case, however, did not involve a defendant who failed to offer any…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. State, 501 So. 2d 158 (Fla. 3d DCA 1987)
- Neeld v. State, 977 So. 2d 740 (Fla. 2d DCA 2008)
- Walker v. State, 599 So. 2d 233 (Fla. 3d DCA 1992)