County 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 (Fla. 6th Cir. App. Ct. Feb. 23, 2004).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

CHRISTOPHER GAMBLE

 

            Appellant,

 

Appeal No. CRC 03-19 APANO

UCN522003AP000019XXXXCR

v.

 

STATE OF FLORIDA

 

            Appellee.

______________________________/

 

 

Opinion filed ____________________.

 

Appeal from decision of the

Pinellas County Court

County Judge Patrick Caddell

 

Charles Lykes, Jr., Esq.

Attorney for appellant

 

C. Marie King, Esq.

Assistant State Attorney

 

ORDER AND OPINION

 

            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 (Fla. 1992). Since the defendant has failed to demonstrate an abuse of discretion in this case, the decision of the trial court will not be disturbed.

            IT IS THEREFORE ORDERED that the decision of the trial court is affirmed.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of February, 2004.

 

 

                                                                                    __________________________

                                                                                    James R. Case

                                                                                    Circuit Judge

 

 

 

                       

                                                                                    ____________________________

                                                                                    Nancy Moate Ley

                                                                                    Circuit Judge

 

 

 

 

                                                                                    ___________________________

                                                                                    John A. Schaefer

                                                                                    Circuit Judge

cc:   State Attorney

 

        Charles Lykes, Jr., Esq.

 

        Judge Caddell

1

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.”