## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________

No. 1D17

- 4006

_____________________________

F RANK L AMAR J ENNINGS

,

Appellant,

v.

S TATE OF F LORIDA

,

Appellee.

_____________________________

On appeal from the Circuit Court for Suwannee County. Paul S. Bryan, Judge.

September 12, 2019

B.L. T HOMAS

, J.

Appellant challenges the trial court’s denial of his motion to withdraw plea . He argu e d that his sentence of f ourteen years followed by sixteen years’ probation violated his plea agreement

.

Facts

Appellant was charged with fleeing a law

- enforcement officer, resisting an officer without violence, driving while license suspended or revoked, multiple counts of possession of a controlled
substance with intent to sell or deliver

, and possession of a
controlled substance within 1000 f eet of a place of worship. Appellant ’ s Criminal Punishment Code scoresheet provided for a maximum sentence of 360 years in prison.

Th e plea agreement stipulated that in exchange for Appellant’s open guilty plea , the State would recommend a2 sentence of no more than fifteen year s in prison and would not seek
an additional probation term

. Appellant would be allowed to argue for a downward departure from the fifteen

- year prison sentence. Before accepting the plea, the court conducted an extensive colloquy, during which Appellant confirmed the voluntariness of his plea, his understanding of t he plea agreement, and his understanding of what the sentence could b e given the scoresheet

. During the colloquy, the court , having established that another judge would be presiding over sentencing

, discuss ed the State’s
recommendation of a fifteen

- year p rison sentence and asked the Appellant, “You understand nobody's offering you any assurances
other than it will not be in excess of fifteen years? ,” to which Appellant replied “Yes, sir.” The plea agreement was then accepted by the court.

At the sentencing hearing, the State upheld the agreement, recommending to the court a fifteen

- year prison sentence. T he

court sentenced the Appellant to fourteen years in prison to be followed by sixteen years of drug

- offender probation.

Appellant filed a motion to withdraw plea alleging that the Appellant was not told of the possibility of additional probation

, and that the thirty

- year split sentence violated the plea agreement. The court deni ed the motion

, stating that the court had
been lenient with t he Appellant by reducing his original 360

- year potential incarceration sentence to a fourteen

- year incarceration sentence with a “lengthy probation” period to follow, which was
less than the State’s recommendation of fifteen years of
incarceration.

Analysi s

The denial of a motion to withdraw plea is reviewed under an
abuse of discretion standard. Smith v. State , 249 So. 2d 1284, 1286 (Fla 1st DCA 2018) (citing Woodly v. State , 937 So. 2d 193, 196 (Fla. 4th DCA 2006)).

Generally, when a trial court expressly informs a defendant of
the sentence it will impose under a plea agreement , the trial court
must make it clear to the defendant whether it intends to impose a probationary period in excess of that sentence. Jefferson v. State

, 515 So. 2d 407, 408 (Fla. 1st DCA 1987) (holding that the court violated the plea agreement because it did not inform the3 defendant that an additional probationary period would be imposed ). However, in Perras v. State

, 550 So. 2d 131 (Fla. 1st DCA 1989) , this court distinguished Jefferson , holding that there is a key difference between the court stating that it will sentence a defendant within a certain range under an agreement and the
State agreeing to seek a sentence within a specified range

.

T he supreme court stated in State v. Adams that the “ only bargain was that the state attorney would make a
recommendation to the court. This was done. When the sentence was imposed, the judge was not b ound by the recommendation of the state attorney or any negotiations which occurred between the state attorney and the defense counsel.” 342 So. 2d 818, 820 (Fla 1977). As is the case here, “ i f the agreement only calls for the state to recommend a particular sentence and it is clear that the trial judge may impose a greater sentence, the defendant cannot withdraw the plea if a greater sentence is imposed so long as the state carries out its pro mise.” Goins v. State , 672 So. 2d 30, 31 (Fla. 1996)

. Here, t he State adhered to the plea agreement and sought a
fifteen

- year prison sentence, allowing the Appellant to argue for a lesser sentence. Appellant previously asserted that he understood the agre ement, which left the maximum term within the discretion of the sentencing judge. The sentencing court did not violate the agreement by imposing a fourteen

- year prison sentence followed by sixteen years of probation

. * Appellant’s plea was voluntary, and

t he lower court did not abuse its discretion in denying the Appellant’s motion to withdraw plea.

A FFIRMED

.

W INOKUR and M.K. T HOMAS

, JJ., concur.

* Additionally, because the State termed its offer as a “cap” of fifteen years, a sentence including fourteen years of incarceration likely would not violate the agreement regardless of the added probationary term. Rollman v. State , 855 So. 2d 239, 242 (Fla. 1st
DCA 2003 ) (Padovano, J., concurring) (noting that, regarding plea
agreements, “ the term ‘cap’ is generally understood to signify only the incarcerative portion of the sentence” ).4 _____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or

9.331

.

_____________________________

Andy Thomas, Public Defender, Jasmine Quintera Russell, Assistant Public Defender, Christopher L. Craun , Tallahassee, for Appellant.

Ashley Moody, Attorney General, Barbara Debelius, Assistant Attorney General

, Tallahassee, for Appellee.