Simmons v. State

District Court of Appeal of Florida

Simmons v. State

645 So. 2d 129, 1994 Fla. App. LEXIS 10991, 1994 WL 630825

District Court of Appeal of Florida·Decided November 14, 1994·No. No. 94-1346·Published·Cited by 1 cases

Opinion

PER CURIAM.

Appellant has appealed a habitual violent felony offender sentence imposed for aggravated battery following his plea of nolo con-tendere. He alleges that contrary to the requirements of Ashley v. State, 614 So.2d 486, 490 n. 8 (Fla.1993), he was not advised of the possible imposition of a 10 year minimum mandatory sentence at the plea colloquy before acceptance of his plea, and therefore his sentence should be reversed. Appellant is challenging the voluntary or intelligent character of his plea without having presented this issue to the trial court. The issue that Simmons asks this court to consider should be presented first to the trial court through a motion to withdraw his plea. If the action of the trial court on such a motion is adverse to the defendant, it would be subject to review on direct appeal. Robinson v. State, 373 So.2d 898 (Fla.1979); Heatley v. State, 636 So.2d 153 (Fla. 1st DCA), rev. denied, 645 So.2d 452 (Fla.1994).

AFFIRMED

ZEHMER, KAHN and VAN NORTWICK, JJ., concur.

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PER CURIAM.

Appellant has appealed a habitual violent felony offender sentence imposed for aggravated battery following his plea of nolo con-tendere. He alleges that contrary to the requirements of Ashley v. State, 614 So.2d 486, 490 n. 8 (Fla.1993), he was not advised of the possible imposition of a 10 year minimum mandatory sentence at the plea colloquy before acceptance of his plea, and therefore his sentence should be reversed. Appellant is challenging the voluntary or intelligent character of his plea without having presented this issue to the trial court. The issue that Simmons asks this court to consider should be presented first to the trial court through a motion to withdraw his plea. If the action of the trial court on such a motion is adverse to the defendant, it would be subject to review on direct appeal. Robinson v. State, 373 So.2d 898 (Fla.1979); Heatley v. State, 636 So.2d 153 (Fla. 1st DCA), rev. denied, 645 So.2d 452 (Fla.1994).

AFFIRMED

ZEHMER, KAHN and VAN NORTWICK, JJ., concur.

Simmons v. State, 645 So. 2d 129, 1994 Fla. App. LEXIS 10991, 1994 WL 630825 (Fla. Ct. App. 1994).

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