DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JEROMEE SAFFOLD,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2022-2399
[November 29, 2023]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara R. Duffy, Judge; L.T. Case No. 15-003460
CF10A.
Carey Haughwout, Public Defender, and Timothy Wang, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Melynda L. Melear,
Senior Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant challenges the denial of his motion to withdraw his plea,
which he made prior to resentencing for two counts of armed sexual
battery, ordered by this court in Saffold v. State, 310 So. 3d 55 (Fla. 4th
DCA 2021). He contends that the court should have allowed him to
withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f)
and Scott v. State, 331 So. 3d 297, 301 (Fla. 2d DCA 2021). We disagree
with Scott and hold that on resentencing, appellant was not entitled to
withdraw his plea pursuant rule 3.170(f).
Appellant pled guilty to seven counts: (I)–(V) armed sexual battery; (VI)
kidnapping with intent to facilitate a felony; and (VII) aggravated battery
with a deadly weapon. At the plea hearing, defense counsel and the court
informed him that he was facing a mandatory minimum of twenty-five
years with life being the maximum sentence. The minimum based upon
his points total was 50.75 years. Appellant stated that he understood his
sentence exposure.
Before sentencing, the State filed a notice that the minimum mandatory
was actually fifty years under the Dangerous Sexual Felony Offender Act.
The State agreed in its sentencing memorandum to a minimum mandatory
of twenty-five years. By motion and then at sentencing, defendant
requested a downward departure. The trial court denied the downward
departure motion and declared appellant qualified as a dangerous sexual
felony offender on Count I and sentenced him to life in prison with a
twenty-five-year mandatory minimum sentence. The trial court
pronounced life sentences for Counts II through V to run concurrently, life
for Count VI to run consecutive to Counts I-V, and a fifteen-year sentence
for Count VII to run concurrently.
Defendant appealed these sentences. In Saffold v. State, 310 So. 3d 55
(Fla. 4th DCA 2021), we directed the court to correct all sentences by
eliminating certain erroneously included points on the scoresheet, but we
deemed that error harmless. Id. at 57. On Counts IV and V, we deemed
that including points for penetration was harmful error when the counts
should have been scored for contact, and we ordered resentencing on those
two counts. Id. at 57-58. We also ordered the trial court to correct the
imposition of a dangerous sexual felony offender designation and twenty-
five-year mandatory minimum sentence on counts II through V and
directed that the designation as a dangerous sexual felony offender and
mandatory minimum be removed on count VI based on section
794.0115(2), Florida Statutes (2019). Id. at 57 n.1. Finally, we ordered
the court to rehear the motion for reconsideration of the downward
departure. Id. at 58. In other words, our opinion directed resentencing
only on Counts IV and V. The other counts were reversed for correction,
not resentencing.
When the case returned to the trial court, the defendant moved to
withdraw his plea pursuant to rule 3.170(f), 1 but the court denied the
motion. At resentencing, the court denied the motion to reconsider the
downward departure. The trial court sentenced appellant to life in prison
with a twenty-five-year mandatory minimum on Count I. The trial court
pronounced that appellant was being sentenced as a “dangerous sexual
offender” and a “sexual predator” on Count I only. The court sentenced
appellant to fifteen years for Count VII and life sentences for the remaining
counts with all counts running concurrently.
1 Although Appellant alleged that he was misled as to the consequences of the
plea because it carried a fifty-year mandatory minimum, and the State could not
agree to a lesser minimum, these grounds could have been raised prior to his
original sentence.
2
Appellant brings this appeal, contending that the trial court erred in
denying his motion to withdraw his plea. He argues that pursuant to Scott,
his motion was proper and timely, because his motion to withdraw his plea
was made “before a sentence,” and Scott held that rule 3.170(f) would apply
to resentencing, which is a de novo proceeding. 331 So. 3d at 301.
Rule 3.170(f) provides “[t]he court may in its discretion, and shall on
good cause, at any time before a sentence, permit a plea of guilty or no
contest to be withdrawn[.]” Fla. R. Crim. P. 3.170(f). In Scott, the appellant
was sentenced as a juvenile and brought a postconviction motion ten years
after his sentence, claiming that the sentence violated changes in the
juvenile sentencing laws. 331 So. 3d at 299. The State agreed that Scott
was entitled to be resentenced. Id. The postconviction court then vacated
the sentence and ordered resentencing. Id.
Scott then moved to withdraw his plea pursuant to rule 3.170. Id. The
trial court rejected the motion to withdraw the plea as untimely, because
Scott did not make the motion within thirty days of his original sentence.
See Fla. R. Crim P. 3.170(l). The court resentenced Scott, and Scott
appealed.
On appeal, the court noted that rule 3.170 has two different sections
for withdrawal of pleas. Scott, 331 So. 3d at 300. Rule 3.170(f) allows the
withdrawal of a plea “at any time before a sentence is imposed” for good
cause shown or in the trial court’s discretion. Rule 3.170(l) allows for a
motion to withdraw a plea on specific grounds within thirty days after
rendition of a sentence.
In construing the language of the rule, the Second District focused on
the article “a.” The court explained, “the use of the nonexclusive ‘a’
suggests that it applies to any sentencing proceeding, whether that be the
initial sentencing or a subsequent resentencing.” Scott, 331 So. 3d at 302.
The Second District held that because resentencing is a de novo
proceeding, the rule entitled the defendant to seek withdrawal of his plea,
as the motion was made before a sentence, namely the sentence imposed
on resentencing. Id. at 301. The court noted that courts have allowed rule
3.170(l) motions to be brought within thirty days of resentencing.
Therefore, the court held:
[I]f the imposition of a new sentence following resentencing
affords a defendant the same plea-withdrawal rights that he
possessed following the rendition of his original sentence, the
revocation of a defendant’s original sentence should likewise
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grant the defendant the same presentencing plea-withdrawal
rights he enjoyed before. Further, if “the sentence,” as it is
called in rule 3.170(l), includes a new sentence imposed after
resentencing, we see no reason why such a new sentence
would not also qualify as “a sentence” under rule 3.170(f).
Id.
We disagree with the Scott analysis. Scott focused on the article “a,”
but stated that the use of the article “a” showed that it applied to “any
sentencing proceeding.” If “a” was to mean “any,” then the article “any”
should have been used. Thus, the rule’s language is ambiguous as to how
it should be construed in these circumstances.
As to the Second District’s concern that if rule 3.170(l) relief is available
to the defendant on resentencing, then rule 3.170(f) relief should likewise
be available, we disagree because the two sections of the rule differ in the
application of the burden of proof in withdrawing the plea. The burden on
the defendant who moves to withdraw a plea prior to any sentence is not
as stringent as the burden on the defendant after sentencing. A defendant
may withdraw his plea before sentencing for good cause or in the trial
court’s discretion. But after sentencing, withdrawal of a plea may only be
made for specific, limited reasons.
Further, “once sentence has been imposed, to withdraw a plea a
defendant must demonstrate a manifest injustice requiring correction.”
State v. Partlow, 840 So. 2d 1040, 1042 (Fla. 2003). The reason for the
liberal standard before sentencing is that the law favors a trial on the
merits. See Moraes v. State, 967 So. 2d 1100, 1101 (Fla. 4th DCA 2007).
However, once a defendant has been sentenced and knows what sentence
the trial court is likely to impose, the grounds upon which a plea may be
withdrawn narrow considerably. This is to prevent the defendant from
simply engaging in a “swift change of heart” once the sentence is known.
See, e.g., U.S. v. Rogers, 848 F.2d 166, 169 (11th Cir. 1988); U.S. v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987). When a defendant
is being resentenced, the defendant already knows the sentence he/she
has received. Thus, the defendant is in the same position as the defendant
who seeks to withdraw the plea pursuant to rule 3.170(l) after sentencing,
not the position of the defendant who seeks to withdraw the plea before
sentencing.
Rule 3.170(f) permits a defendant to withdraw a plea under a more
liberal standard before a sentence. Once a sentence is imposed, although
the sentence may be later reversed, the defendant returns to the trial court
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for a resentencing, not an original sentence. Procedurally, the
resentencing is treated as a new sentencing proceeding, see State v.
Collins, 985 So. 2d 985, 989 (Fla. 2008), but that does not negate the fact
that the defendant has already had a sentence imposed. Thus, if a motion
to withdraw under rule 3.170(f) must be made before a sentence, then the
only time that can occur is before the original sentence. All other
sentences are after the original sentence.
To permit the defendant to withdraw a plea under the more liberal
standard of rule 3.170(f) after a reversal and remand for resentencing
allows the defendant the right to have a “swift change of heart,” knowing
what sentence may likely be imposed. This is the reason that rule 3.170(l)
provides a much more limited right to withdraw the sentence.
Allowing a defendant to move to withdraw a plea under rule 3.170(f) is
likely to greatly prejudice the State, as witnesses may not be available
years after the original proceeding has concluded. Scott serves as an
example because the court permitted withdrawal of Scott’s plea ten years
after the original proceedings.
Interpreting rule 3.170(f) as permitting a motion to withdraw a plea
upon resentencing also conflicts with the principle of finality. In Campbell
v. State, 125 So. 3d 733 (Fla. 2013), the court applied that rule in
considering the proper interpretation of Florida Rule of Criminal Procedure
3.172(g), which allows the withdrawal of a plea any time prior to
acceptance by the trial court. The trial court in Campbell had not formally
announced its acceptance of the plea, yet the defendant was adjudicated
and sentenced. 125 So. 3d at 734. Eleven years later, the defendant
moved to withdraw his plea because of the failure of the trial court to
announce its acceptance. In determining that the adjudication and
sentence amounted to the acceptance of the plea, the court noted that the
literal reading of the rule would lead to an absurd result and would be
contrary to the interests of finality in judicial proceedings:
The importance of finality in any justice system, including the
criminal justice system, cannot be understated. It has long
been recognized that, for several reasons, litigation must, at
some point, come to an end. In terms of the availability of
judicial resources, cases must eventually become final simply
to allow effective appellate review of other cases. There is no
evidence that subsequent collateral review is generally better
than contemporaneous appellate review for ensuring that a
conviction or sentence is just. Moreover, an absence of finality
5
casts a cloud of tentativeness over the criminal justice system,
benefiting neither the person convicted nor society as a whole.
Id. at 742 (quoting Witt v. State, 387 So. 2d 922, 925 (Fla. 1980) (footnote
omitted)). The court further explained:
To allow the defendant to reverse the entire process that he
knowingly and voluntarily agreed to eleven years earlier solely
based on the trial judge’s inadvertent failure to utter a simple
phrase would seem to “casts a cloud of tentativeness over the
criminal justice system.” Id. It also appears that reversing
the Second District’s holding would possibly cause
substantial prejudice to the State in the consequent trial of
the defendant, due to the expected decaying of evidence over
time, along with the possible memory lapse of potential
witnesses.
Id.
While resentencing is usually not the result of an inadvertent error as
in Campbell, nevertheless, to allow the defendant the ability to move to
withdraw his plea prior to resentencing, when he did not move to withdraw
the plea prior to his original sentence, contravenes the interest in finality
to these criminal proceedings. Also, allowing withdrawal of appellant’s
plea highlights the impracticality of Scott under these circumstances,
because appellant was being resentenced on only two counts, while the
remainder of the counts were final. Thus, even if we accepted appellant’s
argument, he still could not withdraw his plea as to the other counts on
which our court did not direct resentencing. Moreover, if the motion were
granted and appellant was allowed to withdraw his plea as to only the two
counts for which resentencing was directed, he still had been convicted to
life in prison with a twenty-five-year mandatory minimum on count one. 2
Conclusion
We hold that appellant was not entitled to bring a motion to withdraw
a plea pursuant to rule 3.170(f) upon court-ordered resentencing. We
therefore affirm the trial court’s denial of appellant’s motion to withdraw
2 Appellant also raises an issue with respect to the process which the trial court
used to permit appellant to have the court consider the motion to withdraw when
appellant was represented by a public defender who had not filed the motion for
him. Under these unusual circumstances, we do not think the court erred.
6
his plea. We certify conflict with Scott v. State, 331 So. 3d 297, 301 (Fla.
2d DCA 2021).
Affirmed; conflict certified.
GROSS and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
7