DOMBROWSKI v. MOORE (1999)

District Court of Appeal of Florida,Fourth District.

Paul DOMBROWSKI, Petitioner, v. Michael W. MOORE, Secretary, Florida Department of Corrections; Robert A. Butterworth, Attorney General, State of Florida, Respondents.

No. 99-2229.

Decided: August 25, 1999

Paul Dombrowski, Miami, pro se. No response required for respondents.

Petitioner claims that his appellate counsel was ineffective by not arguing on appeal that in sentencing appellant pursuant to a plea, the trial court violated Goins v. State, 672 So.2d 30, 31 (Fla.1996), because it failed to offer him the right to withdraw his plea after the court determined it could not honor the terms of the plea bargain. In petitioner's case, however, no plea bargain was ever struck. Instead, at the suggestion of the court, petitioner entered into an open plea hoping that the trial court would give the petitioner a “break” in sentencing, based upon the court's participation in the plea negotiations between the state and petitioner in which the court encouraged the state to agree to a fifteen year sentence. Subsequently, at the sentencing hearing, the trial court handed down a thirty year sentence. Because Goins is distinguishable from the instant case, appellate counsel could not be ineffective for failing to argue an inapplicable case.

PER CURIAM.

WARNER, C.J., KLEIN and SHAHOOD, JJ., concur.

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