State v. Braverman

348 So. 2d 1183
CourtDistrict Court of Appeal of Florida
DecidedJuly 12, 1977
Docket76-1767
StatusPublished
Cited by20 cases

This text of 348 So. 2d 1183 (State v. Braverman) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Braverman, 348 So. 2d 1183 (Fla. Ct. App. 1977).

Opinion

348 So.2d 1183 (1977)

STATE of Florida, Petitioner,
v.
Allen BRAVERMAN, Respondent.

No. 76-1767.

District Court of Appeal of Florida, Third District.

July 12, 1977.
Rehearing Denied September 9, 1977.

*1184 Richard E. Gerstein, State Atty., for petitioner.

William B. Seidel, Fort Lauderdale, for respondent.

Before BARKDULL, HAVERFIELD and HUBBART, JJ.

HUBBART, Judge.

This is a criminal prosecution in which the defendant entered nolo contendere pleas to certain criminal charges which the trial court accepted but later permitted the defendant to withdraw. The State petitions this court for a writ of certiorari seeking review of the order allowing the withdrawal of such pleas. The issues presented for review center on whether the trial court's order herein constitutes a departure from the essential requirements of law. We conclude that the petition for writ of certiorari should be granted and the order under review quashed.

I

The record reflects that the respondent, Allen Braverman, who was the defendant below, was charged by information before the Circuit Court for the Eleventh Judicial Circuit of Florida with possession of a controlled substance, sale or delivery of a controlled substance, conspiracy to commit a felony and assault with intent to commit murder. Three other co-defendants, including Kim Kestner, were jointly charged with the same crimes as well as other offenses not relevant here.

On July 24, 1974, the defendant through privately retained counsel filed a written plea of not guilty. Thereafter, over a year passed during which time the defendant continued to be represented by counsel who presumably took whatever steps he deemed necessary to investigate and prepare the case.

On November 14, 1975, the defendant appeared with counsel before the trial court for the purpose of changing his plea. The defendant through counsel asked the court to permit him to withdraw his plea of not guilty entered over a year ago and tendered a plea of nolo contendere to two counts in the information, to wit: sale or delivery of a controlled substance, and assault with intent to commit murder. A lengthy proffer of the facts pertaining to these two charges was made by the assistant state attorney.

*1185 The factual proffer revealed that the defendant in concert with other co-defendants sold a pound of cocaine to an undercover police officer in an apartment in Dade County, Florida, that surveiling police officers thereafter entered the apartment announcing their authority and purpose, that the officers arrested everyone in the apartment involved in the cocaine sale, that one of the police officers attempted to enter a bedroom in the apartment where the defendant Braverman was counting the cash proceeds of the cocaine sale, that the defendant Braverman dropped the money, picked up a revolver and pointed it at the officer, and that the officer and the defendant Braverman thereupon exchanged gunfire during which time the defendant Braverman was hit. The defense counsel agreed to this proffer with minor exceptions not relevant here. The court then conducted a thorough inquiry of the defendant prior to accepting the nolo plea.[1]

No representation was made by either party or the court that the plea was being tendered or accepted pursuant to any plea negotiation agreement between the state and the defense. See Fla.R.Crim.P. 3.171. The trial court ordered a pre-sentence investigation in the case and set a sentencing hearing for February 2, 1976. This hearing was not held, and the defendant has never been sentenced in this case.

*1186 On or about March 22, 1976, the defendant through counsel filed a motion to withdraw his nolo contendere pleas pursuant to Fla.R.Crim.P. 3.170(f). The motion alleged three grounds as good cause for withdrawal of the nolo pleas, to wit: (1) The discovery of new evidence obtained since the nolo pleas establishing among other things that the defendant was physically unable to have committed the assault with intent to commit murder, which evidence if known at the time of the nolo pleas would have caused the defendant not to have entered the nolo pleas; (2) The state failed to supply the defendant with certain pre-trial discovery; and (3) The defendant entered his nolo pleas upon an honest misunderstanding as to the expected sentence.

On July 30, 1976, the motion came on for a hearing before the trial court. The hearing centered entirely on the first ground of the motion relating to newly discovered evidence. No testimony or proofs were offered in support of the other two grounds. The defendant established that newly discovered evidence had come to the attention of the defense counsel since the entry of the nolo pleas. This evidence consisted of a letter from the co-defendant, Kim Kestner, to her attorney which states as follows:

July 28, 1976. S.L. GAER 99 N.W. 183rd Street, Suite 111 Miami, Florida 33169
Dear Mr. Gaer,
This is to authorize you to state that on the night of my arrest in the case that you represented me for and on, the undercover agents who were later determined to be police officers, when entering my apartment did not announce nor did I hear them announce that they were in fact police officers.
You have fully and completely explained to me the confidentiality existing by virtue of our relationship. Fully understanding this, I hereby waive the privilege of confidentiality existing between an attorney and client with respect to the and solely with respect to the aforementioned.
Yours, /s/ Kim Kestner KIM KESTNER

Kestner's attorney was present at the hearing and announced to the court that his client would not testify at any future trial of the defendant Braverman. He further stated that his client had authorized him to testify in her behalf only as to the contents of the letter and to no more.

The trial court granted the motion to withdraw the nolo pleas over the vigorous protest of the state. This petition for writ of certiorari follows.

II

The major issue presented for review is whether newly discovered evidence constitutes a sufficient ground for the withdrawal of a nolo contendere plea to a criminal charge prior to sentencing. We hold that newly discovered evidence constitutes a sufficient ground for the withdrawal of a nolo contendere plea prior to sentencing only upon a showing that the ends of justice would be served by permitting such a withdrawal.

It is the established law of this state that a plea of guilty or nolo contendere should be entirely voluntary by one competent to know the consequences, and should not be induced by fear, misapprehension, undue persuasion, promises, mistake, fraud, inadvertence or ignorance. A defendant should be permitted to withdraw a plea of guilty or nolo contendere prior to sentencing where it is the least evident that the plea was infected by any of the above influences or was entered by one not competent to know its consequences or was otherwise involuntary, or where it appears that the ends of justice would be served by the withdrawal of such a plea. The defendant has the burden of establishing one of the above grounds in order to be entitled to withdraw his guilty or nolo contendere plea. Canada v. State, 144 Fla. 633, 198 So. 220 (1940); Eckles v. State, 132 Fla. 526, 180 So. *1187 764 (1938); Pope v. State, 56 Fla. 81, 47 So. 487 (1908); Stapleton v.

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Bluebook (online)
348 So. 2d 1183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-braverman-fladistctapp-1977.