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23 So. 3d 763

Muse v. State

District Court of Appeal of Florida

Decided November 17, 2009

District Court of Appeal of Florida · decided 2009-11-17

Cited by 2 later decisions — most recently February 2014

2 state decisions

Key passage — most relied on by later courts

“The State argues that acceptance of the pleas can be inferred from the existence of the Deferred Adjudications in the record. Although these documents state that appellant entered guilty pleas, they do not state that the judge accepted the pleas. It could as easily be argued that the court evidenced its intent not to accept the pleas by deferring adjudication and ordering predisposition and presentence investigation reports. Since the ability of all parties to repudiate a negotiated plea hinges upon acceptance of the plea by the court, the rule wisely requires formal acceptance of that plea, rather than subjective or im plied acceptance. We therefore hold that formal acceptance of a plea occurs when the trial court affirmatively states to the parties, in open court and for the record, that the court accepts the plea.”

quoted by 1 later decision, including 125 So. 3d 733 - Campbell v. State

Relies on 437 So. 2d 1079 - Forbert v. State · Harden v. State · 783 So. 2d 288 - Davis v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2009-11-17

View the full empirical analysis of this case →

PER CURIAM.

¶1Willie James Muse appeals the trial court’s denial of his presentencing motion to withdraw plea. He contends the trial court did not conduct a proper plea colloquy and did not formally accept his plea, as required by Florida Rule of Criminal Procedure 3.172(g). We review a trial court’s denial of a motion to withdraw plea for abuse of discretion. Davis v. State, 783 So.2d 288, 289 (Fla. 5th DCA 2001). We reverse.

¶2The State charged appellant by information with aggravated battery with a deadly weapon (count I), aggravated assault by threat with a deadly weapon (count II), and false imprisonment (count III), the charges arising out of an incident with appellant’s ex-wife. Appellant pled straight up to counts I and II in the Circuit Court for Escambia County and signed a written plea agreement. The State agreed to nolle prosequi count III. The trial court explained to appellant the nature of a straight up plea and questioned him as to whether he signed and understood the plea agreement, reviewed it with his attorney, and gave his acquiescence voluntarily. Finally, the trial court asked appellant, “you understand ... as part of the plea agreement ... you are waiving 9 rights here?” To all of the foregoing questions appellant responded in the affirmative. The trial court proceeded to order a presentence investigation. Appellant sought to withdraw his plea five days later. After hearing, the trial court denied the motion, expressly finding the plea had been accepted.

¶3Florida Rule of Criminal Procedure 3.172(g) provides for the withdrawal of a plea offer or negotiation by either party at any time before it is accepted formally by the trial judge. The rule requires “formal acceptance of [the] plea,” which occurs when the trial court “affirmatively states to the parties, in open court and for the record, that the court accepts the plea.” Harden v. State, 453 So.2d 550, 551 (Fla. 4th DCA 1984). The fundamental defect in the proceedings above was the trial court’s failure to express its acceptance of appellant’s plea; the ordering of a presentence investigation is not sufficient in this respect. As the plea agreement is no longer binding on appellant, however, the State may reinstate the count of false imprisonment and proceed to trial on all of the original charges. See Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983).

¶4The State having conceded the error, we note the professionalism and integrity with which the State has conducted itself in these proceedings. We also direct the court on remand to the requirements of Florida Rule of Criminal Procedure 3.172(c), which instructs the trial judge to determine that a pleading defendant understands the nature and consequences of *765waiving the specific rights enumerated therein.

¶5REVERSED and REMANDED.

KAHN, BENTON, and CLARK, JJ., concur.
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