Criminal Court: CRIMINAL PROCEDURE – Pleas – Although the defendant was
never advised during plea colloquy that his plea to a misdemeanor charge would
violate his felony probation, testimony during the evidentiary hearing revealed
that defendant was specifically told of the consequences by his felony probation
officer and the trial judge during prior proceedings. – Therefore, defendant’s
motion to withdraw his plea was properly denied. – Order affirmed. Gamble
v. State, No. 03-19 (
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 03-19 APANO
Opinion filed ____________________.
Appeal from decision of the
County Judge Patrick Caddell
Charles Lykes, Jr., Esq.
Attorney for appellant
C. Marie King, Esq.
Assistant State Attorney
THIS MATTER is before the Court on Christopher Gamble’s appeal from a decision of the Pinellas County Court denying his motion to withdraw his plea. After reviewing the briefs and record, this Court affirms the decision of the trial court.
The defendant claimed that during advisories he had asked for a speedy trial and that the judge conducting the advisories had informed him that he would go to trial the next day.1 The defendant appeared the next day and was advised by the court to speak with counsel that was provided for him. After speaking with the assistant public defender, the defendant elected to enter a no contest plea to the domestic violence and resisting arrest without violence charges. Later, however, he sought to withdraw that plea. He claimed that pleading no contest to the charges violated his felony probation, and that he was never told or counseled that his plea would cause such a result. The trial court, however, denied his request. The defendant seeks review of that denial.
The learned trial judge afforded the defendant significant due process in reviewing his request. He granted the defendant a full evidentiary hearing in which several witnesses testified, including the defendant. In addition to considering the testimony of the witnesses, the trial judge had access to the transcripts of the pertinent proceedings, and had actual recall of some of the defendant’s proceedings.
The trial judge concluded that although the transcript revealed that
the defendant had never been specifically advised on the record that his plea
would cause his felony probation to be violated, it did not matter because
the defendant had actual notice that a plea might cause his felony probation
to be violated. In support of his conclusion, the trial judge noted that the
defendant’s felony probation officer testified at the hearing that he had
specifically told the defendant that any future charge would result in his
probation being violated. Moreover, the trial judge specifically recalled
that he had informed the defendant that such a charge would violate his probation.
The defendant admittedly knew he was on probation. He was actually informed
by both his probation officer and the judge that the new charges would violate
his probation. Defense counsel’s attempt to distinguish information that a
charge would violate his probation from information that entering a plea would
violate his probation is not persuasive. The trial judge’s findings are supported
by substantial competent evidence, and the proceedings were conducted in conformance
with the governing law. A trial court’s decision regarding a withdrawal of
a no contest plea will not be disturbed on appeal, absent a showing of an
abuse of discretion. See Hunt v. State, 613 So.2d 893 (
IT IS THEREFORE ORDERED that the decision of the trial court is affirmed.
DONE AND ORDERED in Chambers at
James R. Case
Nancy Moate Ley
John A. Schaefer
cc: State Attorney
Charles Lykes, Jr., Esq.
A review of the transcript of the advisory hearing reveals that the judge actually said that the defendant should really speak to a lawyer first “[b]ecause otherwise we’ll have the trial tomorrow.”