#### Ramon LOPEZ, Appellant, v. STATE of Florida, Appellee.

Nos. 73-479, 73-537.

District Court of Appeal of Florida, Fourth District.

March 15, 1974.

Rehearing Denied April 2, 1974.

Douglas C. Fulton, West Palm Beach, for appellant.

Robert J. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Based upon our review of the briefs and oral argument and upon consideration of the record on appeal we are of the opinion that reversible error has not been made to clearly appear. With particular regard to the voluntariness of defendant’s plea we are of the view that the record affirmatively shows that the defendant intelligently and understandably entered his plea of guilty without misapprehension, ignorance, fear or inducement.1

Affirmed.

*230MAGER and DOWNEY, JJ., concur.

WALDEN, J., dissents, with opinion.

1

. The testimony at the hearing held on defendant’s motion to withdraw his guilty plea refutes the contention of the defendant that the public defender assigned to represent him misled him as to the nature of the sentence he would receive. Illustrative of the foregoing is the following colloquy between defendant’s attorney (in the proceedings below) and the public defender:

> “Q Okay. Based on what you know of this Defendant’s education and his intelligence and whatnot is there any chance that in the discussions of the woman, Epifanía Rodriquez, that the Defendant would have felt that if he pled out she would go free and not be further prosecuted in this case?

> “A The way that I would say from what I would know about what I have said to him, there is no way he could possibly get the feeling that he was doing anything for the woman in connection with his plea. It is also my impression from what I have said to him that nobody was promising him anything and neither was the Judge, and if he took the plea that the Judge could give him up to 15 years and if he didn’t take the plea the Judge would have nothing to do with the decision of guilt or innocence be*230cause I go into that also. I don’t know how that came across in Spanish because I don’t speak Spanish. I never had any problems with Mary (one of the interpreters) before and we have handled together many, many, many cases. I also know that this man, after the plea and so on accused Mary of working for the State.”

(Transcript 20-21)

WALDEN, Judge

(dissenting):

Does the record affirmatively reflect that the defendant’s guilty plea was properly made? Was it entered freely, voluntarily and without misapprehension, persuasion, promises, inadvertence, ignorance or fear?

The issue is close. From the totality of the circumstances I can not help but believe that the defendant was in fact mislead and uninformed in consigning himself to prison without a trial.

It is to be remembered that a resolution here in favor of defendant does not exonerate him — it merely gives him a chance to be tried in court according to law. And if a jury finds him not guilty based on the proofs, he will be free — otherwise not.

The defendant here entered a plea of guilty to manslaughter. He is an indigent Puerto Rican who understands no English and is possessed of a fourth grade education. An information charging murder had been filed against defendant and “his woman,” one Epifanía Rodriguez. No attorney from the Public Defender’s office ever interviewed or corresponded with the defendant while he was in jail.

When the lower court granted a motion of severance to Epifanía Rodriquez the defendant withdrew his plea of not guilty to murder and entered a plea of guilty to manslaughter. The defendant now claims that the plea of guilty was not voluntary, nor did he completely understand what would happen to him.

Before his plea of guilty was made conversations via an interpreter took place between defendant and the Public Defender in a room adjoining the courtroom. The Public Defender used an interpreter which was not his usual interpreter. It is indicated in the transcript that the Public Defender had more confidence in his regular interpreter than in the one he used.

The defendant testified that the Public Defender told him that if he plead guilty to manslaughter he would receive a reduced sentence of three years and that the State would let the woman go. It is clear that the defendant was extremely concerned about this woman. The Public Defender did indicate that he had spoken to the defendant about the disposition of the case against the woman, and that defendant was extremely apprehensive about that consideration. The Public Defender *did*say flatly that he did not think the defendant could get the feeling that he was doing anything for the woman in connection with his plea. After discovering that he had been sentenced to fifteen years, defendant was “shocked.” The Public Defender himself testified that the defendant’s behavior after sentencing was “astonishing.”

The trial court colloquy reveals that defendant was asked by the court if he understood that the charge was a felony punishable by imprisonment in a state penitentiary and if he was pleading guilty because he was guilty, and had not been threatened nor had any promise of reward made to him. This information can be found in the minutes of the Criminal Court of Record in and for Palm Beach County, page 7 of the record on appeal. It does not appear that the defendant was informed of the maximum and minimum sentences possible.

It is interesting to note that as a result of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969), it was proposed that Rule 11 of the Federal Rules of Criminal Procedure be changed to pro*231vide that the defendant be told the mandatory minimum punishment and the maximum possible punishment provided by the statute defining the defense to which the plea is offered. It seems important to the writer that this information was *not*given to the defendant when interrogated by the court concerning his plea.

Summing up it is my distinct conviction that this defendant’s plea was not properly made and it does not affirmatively appear to the contrary. Further, we know that even a slight undue motivation will invalidate a guilty plea. Bartz v. State, 221 So.2d *7*(2nd D.C.A.Fla.1969); Reddick v. State, 190 So.2d 340 (2nd D.C.A.Fla.1966).

I would reverse and remand with instructions to allow defendant to withdraw his plea and proceed to trial.

For the above reasons I respectfully dissent.