BRASWELL v. STATE (2008)

Terry Braswell appeals an order revoking his probation and the resulting sentences he received upon revocation.   We affirm the order revoking probation but remand for a new sentencing hearing before a different judge.

Mr. Braswell was charged with possession and sale of methamphetamine in 2006.   He pleaded guilty in exchange for two concurrent terms of twenty-four months' drug offender probation.   While serving that probation, he was charged with violating condition six by associating with people engaged in criminal activity and condition seven by using intoxicants to excess.

When he appeared before the trial court on the violation of probation, Mr. Braswell admitted the two violations and left his sentence to the discretion of the trial judge.   His scoresheet permitted the trial judge to impose a term of imprisonment as low as thirty-two months.   The trial judge sentenced him to the maximum fifteen-year term of imprisonment for the charge of sale of methamphetamine with a concurrent five-year sentence for the charge of possession.

What Mr. Braswell and his attorney did not know at the time he entered this plea was that the trial judge had recently heard evidence in another case of alleged drug-dealing by Mr. Braswell while he was serving this term of probation.   The trial court did not disclose this information to Mr. Braswell before his plea.   The proceedings in the other case were eventually transcribed and placed in this record.   After reviewing that transcript, we see no basis to allow Mr. Braswell to withdraw his plea, but we agree that he is entitled to be resentenced by a different trial judge.

Affirmed in part, reversed in part, and remanded.

PER CURIAM.

ALTENBERND and KHOUZAM, JJ., and CASE, JAMES R., Associate Senior Judge, Concur.