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466 So. 2d 1224

466 So.2d 1224

10 Fla.L.Weekly 961

Smith v. State

District Court of Appeal of Florida · decided 1985-04-10

Cited by 1 later decisions — most recently September 1999

1 state decisions

Relies on 376 So. 2d 59 - Counts v. State · 454 So. 2d 714 - Garcia v. State · 455 So. 2d 586 - Green v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1985-04-10

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PER CURIAM.

¶1Appellant pleaded guilty to the offense of shooting into an occupied vehicle and was sentenced to thirty months incarceration followed by two years probation, a departure from the sentencing guidelines recommendation. Appellant asserts three points on appeal. The first, that the trial judge erred in departing from the guidelines, is without merit. Webster v. State, 461 So.2d 965 (Fla. 2d DCA 1984); Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984); Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984). Appellant’s second point, that the trial judge erred in imposing a split sentence, is also without merit. § 921.187, Fla.Stat. (1983); Brown v. State, 460 So.2d 427 (Fla. 5th DCA 1984).

¶2Appellant’s third point is that his guilty plea was involuntary due to his mental incompetence. The record on appeal contains no motion to withdraw his guilty plea and appellant does not represent that he ever so moved the trial court. A motion to withdraw a guilty plea is a prerequisite to a direct appeal challenging the plea’s volun-tariness. Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). Therefore, this point on appeal is dismissed without prejudice to appellant’s subsequent filing a motion under Florida Rule of Criminal Procedure 3.850.

¶3The judgment and sentence appealed from ⅛ affirmed,

RYDER, C.J., and FRANK and HALL, JJ., concur.
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