TANNER v. STATE (2005)

District Court of Appeal of Florida,Fifth District.

Alfonso TANNER, Appellant, v. STATE of Florida, Appellee.

No. 5D04-3747.

Decided: August 12, 2005

James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

Alfonso Tanner appeals his convictions and sentences, contending that the trial court abused its discretion by denying him an opportunity to file a motion to withdraw his no contest pleas prior to sentencing. The written plea agreement between Tanner and the State called for him to be designated as a habitual felony offender. The State furnished Tanner with notices of intent to seek enhanced sentences both as a habitual felony offender and as a habitual violent felony offender. The trial court's plea dialogue used both terms interchangeably, without making clear which designation would be imposed by the court. When Tanner expressed confusion on this point, and indicated his wish to file a motion to withdraw his plea prior to sentencing, the court refused to give him an opportunity to do so.

Given the confusing state of the record, we conclude that the court's refusal to provide Tanner an opportunity to file a motion to withdraw his plea was an abuse of discretion. Accordingly, we reverse and remand with directions that Tanner be given an opportunity to file a motion to withdraw his pleas.

REVERSED AND REMANDED.

ORFINGER, J.

PLEUS, C.J., and MONACO, J., concur.

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