County Criminal Court: CRIMINAL PROCEDURE – Pleas –election under Florida Statute 318.14(10), must be made prior to a court appearance. Order affirmed. Worley v. State, 512006CA2459WS ((Fla. 6th Cir. App. Ct. October 6, 2006).

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY, FLORIDA

APPELLATE DIVISION

 

 

CHARLIE WORLEY, 

                                    Petitioner,

 

vs.                                                                    CASE NO; 51-2006-CA-2459WS                                                                

 

STATE OF FLORIDA,

           

Respondents.

___________________________________/

 

Lorraine Johns, A.P.D.,

for Petitioner

 

Dennis J. Alfonso, Esq.,

for Jed Pittman, Clerk of Circuit Court 

 

 

 

ORDER DENYING PETITION FOR

WRIT OF MANDAMUS 

 

 

On January 13, 2004, petitioner was charged with driving while license suspended.   The petitioner’s  arraignment was set for March 12, 2004, but he was not present because he was not transported from Hernando County. Arraignment was reset for April 26, 2004.  On April 26, the public defender was appointed and a pretrial conference was scheduled for May 18, 2004. On May 18, 2004, the petitioner was advised of the provision in FS 318.14(10) and defense counsel and the petitioner went to the clerk’s office and spoke with the clerk.  The clerk agreed that the petitioner was eligible under the statute. The petitioner had obtained his driver’s license, but still needed $143.00 to pay the fee under the statute.  At the pretrial conference, defense counsel advised the court that the petitioner would be taking advantage of the provisions in section 318.14(10) and rescheduled the pretrial conference for June 29, 2004. On May 21, 2004, the petitioner returned to the clerk’s office with his driver’s license and $143.00.  The clerk informed him that he was ineligible because he already had a court date.  On June 29, 2004 defense counsel advised the court of the clerk’s refusal and the court allowed defense counsel a final continuance to allow defense counsel to go to the supervisor of the clerk’s office to obtain clarification.  Defense counsel spoke to the supervisor who advised defense counsel that the policy in Pasco County is to not allow defendants to plead no contest once a court date is set.  Petitioner filed a Petition for Writ of Mandamus requesting this Court order the Clerk of Court to accept petitioner’s plea pursuant to Florida Statute 318.14(10).  This Petition for Writ of Mandamus is Denied.

Florida Statute 314.18(10) reads:

(a) Any person who . . . is cited for an offense listed under this subsection may, in lieu of payment of fine or court appearance, elect to enter a plea of nolo contendere and provide proof of compliance to the clerk of the court or authorized operator of a traffic violations bureau. In such case, adjudication shall be withheld; . . . This subsection applies to the following offenses:
1. Operating a motor vehicle without a valid driver's license in violation of the provisions of s. 322.03, s. 322.065, or s. 322.15(1), or operating a motor vehicle with a license which has been suspended for failure to appear, failure to pay civil penalty, or failure to attend a driver improvement course pursuant to s. 322.291. . .

 

(b) Any person cited for an offense listed in this subsection shall present proof of compliance prior to the scheduled court appearance date. . . .

 

This Court finds that the plain wording of the statute dictates that the election be made prior to a court appearance.  Here, the election was not made prior to the court appearance.  Therefore, petitioner could not elect to proceed under F.S. 314.14(10).

Petitioner cites to Jones v. State, 832 So. 2d 207 (Fla. 1st DCA 2002) in support of his argument. However, as argued by the Clerk in this case, the Jones case addresses the issue of the effectiveness of counsel with regard to informing a defendant of the right created by 318.14(10).  Jones did not, however, address whether the statute contemplated that such right to make such election without “court appearance” extended beyond the arraignment, including a second or subsequent court appearance.   

Accordingly, this court finds that an election under Florida Statute 318.14(10), must be made prior to a court appearance.  See Carter v. State,   763 So.2d 1134, 1135 (Fla. 4th DCA 1999)(if petitioner was going to avail himself of section 318.14(10), he had to do so prior to “the scheduled court appearance date.” ).

IT IS THEREFORE ORDERED AND ADJUDGED that the Petition for Writ of Mandamus is DENIED.

 

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of  _____________, 2006.                                                            

                                                                                    ________________________

                                                                                    W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                                                    ____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                       

                                                                                    _____________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to:

Lorraine Johns, A.P.D.

Dennis J. Alfonso, Esq.