IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
JANUARY TERM 2005
CASE NO. 5D04-2701
STATE OF FLORIDA,
Opinion filed June 10, 2005
Appeal from the Circuit Court for
J. Preston Silvernail, Judge.
Daniel S. Ciener and Aaron J. Zmarzlinski
of the Law Firm of Daniel S. Ciener, Merritt
Island, for Appellant.
Charles J. Crist, Jr., Attorney General,
Tallahassee, and Timothy D. Wilson,
Assistant Attorney General, Daytona
Beach, for Appellee.
Anthony Collucci appeals the trial court's denial of his motion to withdraw plea
filed pursuant to Florida Rules of Criminal Procedure 3.170(f).
Collucci accepted and signed a plea agreement offered by the State in which he
was required to plead guilty to home invasion robbery and accept incarceration for
sixteen years in the Department of Corrections, followed by lifetime probation. When
the agreement was presented to the trial court, the court conducted a lengthly and
detailed plea colloquy.
The court then "conditionally" accepted the signed plea
agreement, ordered a pre-sentence investigation and scheduled sentencing.
Collucci hired new counsel before the sentencing date and moved to withdraw
his guilty plea because it was allegedly entered involuntarily. Following a series of
evidentiary hearings, his motion was denied because the court found the plea to have
been knowingly and voluntarily entered.
Collucci's ability to withdraw a plea prior to sentencing is governed by Florida
Rules of Criminal Procedure 3.170(f) and 3.172(f). Rule 3.172(f) requires a court to
permit a defendant to withdraw a plea for any reason if the plea has not been formally
accepted by the court.1 Rule 3.170(f) provides the court with discretion to deny a presentence motion to withdraw a plea that has been formally accepted unless the
defendant establishes good cause to warrant its withdrawal.2 Collucci’s motion was
filed pursuant to both rules. Unless formally accepted by a court, the terms of a plea
agreement are not binding on anyone. E.g., Mackey v. State, 743 So. 2d 1117, 1118
(Fla. 2d DCA 1999). Formal acceptance of a plea occurs when the court affirmatively
states to the parties, in open court and for the record, that the court accepts the plea.
E.g., Harden v. State, 453 So. 2d 550 (Fla. 5th DCA 1984). A trial court's failure to
Rule 3.172(f) provides in pertinent part: “No plea offer or negotiation is binding until it is
accepted by the trial judge formally after making all the inquiries, advisements, and determinations
required by this rule. Until that time, it may be withdrawn by either party without any necessary
Rule 3.170(f) provides in pertinent part: “The court may in its discretion, and shall on good
cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of
conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the
consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser
degree of the offense charged, to be substituted for the plea of guilty.”
grant a motion to withdraw a plea where the court has not formerly accepted the plea
constitutes reversible error. See, e.g., Bass v. State, 541 So. 2d 1336 (Fla. 4th DCA
Collucci alleges that because the court announced that it “conditionally” accepted
his plea, the plea was not formally accepted and the court erred by not permitting him to
withdraw his plea.
The trial court did not establish the details of the
conditions upon which Collucci's plea was accepted nor can we determine from our
review of the record the condition or conditions that the trial court had in mind when he
stated that he "conditionally accepted" the plea.
Because of the absence of this
information, Collucci was unable to determine what, if any, other terms the sentencing
court may impose or whether he could walk away from the plea hearing knowing that
his plea was accepted and that the penalty he agreed to would be imposed. Because
the court did not unconditionally accept Collucci's plea as submitted on the day of the
plea hearing, or obtain a consent to the conditions, the plea was not binding upon any
one and could be withdrawn by Collucci.
We vacate the judgment and sentence imposed following the trial court's refusal
to allow Collucci to withdraw his plea and instruct the court to proceed to trial unless a
plea can be entered without being burdened by unknown conditions.
JUDGMENT AND SENTENCE VACATED; REMAND.
MONACO and TORPY, JJ., concur.