Mennella v. State

658 So. 2d 1114, 1995 Fla. App. LEXIS 7791, 1995 WL 429136

Opinion

COBB, Judge.

In Case Number 95-313 Mennella appeals from the denial of his motion to withdraw a plea in Circuit Court Case No. 94-10282. He argues that he was entitled to do so because of the provisions of Florida Rule of Criminal Procedure 3.172(f):

No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, ad-visements, and determinations required by this rule. Until that time, it may be mth-drawn by either party without any necessary justification. (Emphasis added).

At the time of Mennella’s motion, his plea had not been formally accepted by the trial court. Therefore, it was not binding. Bass v. State, 541 So.2d 1336 (Fla. 4th DCA 1989); Harden v. State, 453 So.2d 550 (Fla. 4th DCA 1984); State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA), cert. denied, 359 So.2d 1222 (Fla.1978). We agree with Mennella that it was error to deny his motion to withdraw his plea.

In Case Number 95-317, Mennella filed an appeal from his judgment and sentence in Circuit Court Case Number 94-1024. He has urged no grounds for reversal in his brief and thus the convictions and sentence in that appeal are affirmed.

CASE NO. 95-317: CONVICTIONS AND SENTENCE AFFIRMED.

CASE NO. 95-313: CONVICTION AND SENTENCE VACATED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

PETERSON, C.J., concurs. GOSHORN, J., dissents without opinion.