NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

IRVIN JONATHAN SIMMONS, ) ) Appellant, ) ) v. ) Case No. 2D16-1023 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________ ) Opinion filed October 18, 2017. Appeal from the Circuit Court for Manatee County; Susan B. Maulucci, Judge. Howard L. Dimmig, II, Public Defender, a nd Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, T allahassee, and Kiersten E. Jensen, A ssistant Attorney General, Tampa, f or Appellee.

SILBERMAN, Judge. After entering a no contest plea to a lesser included offense, Irvin Jonathan Simmons appeals his sentence of sixty months in prison for the seconddegree felony of sale or delivery of a controlled substance. H e contends that the trial court improperly increased the negotiated sentence of thirty-si x months after Simmons- 2 - failed to appear for his sentencing hearing. In the alternativ e, he argues that his trial counsel rendered ineffective assistance for failing to object t o the sentence. Because Simmons did not preserve the sentencing issue by seeking to wit hdraw his plea and the

record does not show ineffective assistance of counsel on the f ace of the record, we

affirm. Simmons was charged with the first-degree felony of sale or del ivery of a

controlled substance within 1000 feet of a school. He entered into an agreement to enter a plea to the second-degree felony of sale of a controlle d substance in return for a sentence of thirty-six months in prison with no minimum mandato ry. The trial court indicated that as long as Simmons appeared for the sentencing h earing on November 5 at 11 a.m., "that's the sentence that [the court would] impose, but if you don't appear, then the deal is off and the original charge of sale or deliver y of controlled substance

within a thousand feet of a school . . . could be reinstated." Simmons acknowledged his understanding of the terms and entered the no contest plea. Simmons failed to appear for sentencing on November 5 and was p icked up by law enforcement on a warrant in late December. At senten cing, the prosecutor asserted that while Simmons violated the plea agreement, the St ate was not reinstating the original first-degree fel ony charge. Rather, sentencing wa s up to the trial court. After inquiring as to Simmons' failure to appear, the trial cou rt imposed a sentence of sixty months in prison with credit for all time served. Simmons contends that the trial court erred in imposing a great er sentence than the thirty-six months to which the parties had ag reed. The plea- 3 - agreement was not the typical Quarterman 1 agreement whereby the defendant agrees that if he does not appear for sentencing "the trial court coul d impose any greater lawful sentence" rather than the sentence specified in the plea agreem ent. Neeld v. State, 977 So. 2d 740, 743 (Fla. 2d DCA 2008); see also Henson v. Stat e, 977 So. 2d 736, 739 (Fla. 2d DCA 2008) (noting that Henson had not agreed that "he could be sentenced to any lawful sentenc e if he did not appear" for the scheduled sentencing hearing). Rather, Simmons had agreed that if he did not show u p for sentencing it would be a violation of the plea agreement and his plea to the lesser included charge would not have to stand; the State could reinstate the original ly charged first-degree felony, for which he would be subject to thirty years' imprison ment. If an agreement does not provide that the trial court can sente nce the defendant to any lawful sentence if he fails to appear for sent encing, then the trial court cannot "simply proceed to sentencing as if the plea had been an open plea." Henson, 977 So. 2d at 739. Therefore, if the trial court wanted to exc eed the negotiated sentence, it was required to give Simmons an opportunity to wit hdraw his plea. "[A] trial court retains the authority to alter a prior plea arrangement u p until the time sentence is imposed, so long as the trial court provides the defendant an o pportunity to withdraw any plea that was entered in reliance on the promised sentence. " Rollman v. State, 887 So. 2d 1233, 1235 (Fla. 2004); see also Williamson v. State, 97 4 So. 2d 582, 583 (Fla. 2d DCA 2008) ("Both sides recognize that the trial court is not bound by any plea agreement."). However, to preserve this issue for review, Simm ons was required to file

1 Quarterman v. State, 527 So. 2d 1380 (Fla. 1988).- 4 - a motion to withdraw his plea, which he did not do. See McClou gh v. State, 74 So. 3d 158, 160 (Fla. 2d DCA 2011). Simmons argues that defense counsel 's failure to object at sent encing and failure to file a motion to withdraw the plea constitutes ineff ective assistance of counsel on the face of the record, relying upon cases such as Lowery v. State, 22 So. 3d 745 (Fla. 2d DCA 2009). Lowery is dis tinguishable in that counsel agreed with the trial court's erroneous recollection of the plea agreement, and Lower y entered her plea to the original charged crime, not a lesser included offense. Id. at 746, 748. Lowery received the maximum prison sentence of five years for the char ged crime rather than the negotiated eighteen months. Id. at 746. Here, counsel's failure to object or to file a motion to withdr aw plea is not ineffective on the face of the record when there is a possible tactical reason for

counsel's inaction. See McCl ough, 74 So. 3d at 160; Henson, 97 7 So. 2d at 739; Williamson, 974 So. 2d at 584. Based on the circumstances here , this could have been

a tactical decision since the wi thdrawal of the plea could have resulted in the reinstatement of the original charge with the risk of a thirty- year sentence with a minimum mandatory, rather than the imposed five-year sentence w ith no minimum mandatory. Further, even if the State elected not to reinstate the original charge, Simmons would have been exposed to the possibility of being con victed on the seconddegree felony and being sentenced to up to fifteen years. Because of his breach of the plea agreement, Simmons is not ent itled to imposition of the negotiated sent ence of thirty-six months. He has not sought to- 5 - withdraw the plea agreement and has not demonstrated ineffectiv e assistance of counsel on the face of this record. Accordingly, we affirm the judgment and sentence.

Affirmed.

BLACK and SALARIO, JJ., Concur.