State ex rel. Albano v. Nelson

363 So. 2d 1165, 1978 Fla. App. LEXIS 16938

Opinion

SMITH, Acting Chief Judge.

Albano’s petition for writ of prohibition contests the trial court’s power to proceed in this criminal prosecution otherwise than by pronouncing judgment and sentence upon Albano’s plea of nolo contendere, tendered on condition that suppression issues be preserved for appeal. The trial court accepted the tendered plea, so conditioned, but later rejected the plea after inspecting the presentence investigation report, and undertook to require Albano to plead unconditionally. We consider that, for the reasons stated in State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA 1978), the court was without power to reject a nolo contendere plea once accepted; that Albano is in jeopardy of judgment and sentence upon that plea; and that the trial court must now proceed to judgment and sentence. See also State ex rel. Milton v. Strickland, 361 So.2d 446 (Fla. 2d DCA 1978).

The petition for writ of prohibition is GRANTED.

ERVIN and BOOTH, JJ., concur.