Davis v. State

733 So. 2d 609, 1999 Fla. App. LEXIS 9055, 1999 WL 454427

Opinion

ON CONFESSION OF ERROR

PER CURIAM.

John E. Davis appeals from an order of the trial court denying his motion for post conviction relief. Davis contended, in pertinent part, that his nolo contendere plea to the charge of unlawful possession of a firearm by a convicted felon was involuntary, as the trial court failed to confirm that he understood the reasonable consequences of habitualization pursuant to Ashley v. State, 614 So.2d 486 (Fla.1993). The state correctly concedes that this was error. Accordingly, we vacate the habitual offender sentence and remand for further proceedings.

On remand, Davis should be given the opportunity to withdraw his plea and proceed to trial if he so desires. If Davis withdraws his plea, the original charges shall be reinstated. Should he again elect to plead nolo or guilty, the court may in its discretion sentence him under the guidelines or impose an habitual offender term if the requirements of section 775.084, Florida Statutes (1997), and Ashley are met. See State v. Wilson, 658 So.2d 521, 523 (Fla.1995).

Reversed and remanded for further proceedings consistent with this opinion.