FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Dan Traver, Judge.
W. Smith, III, of CPLS, P.A., Orlando, for Appellant.
Moody, Attorney General, Tallahassee, and Andrea K. Totten,
Assistant Attorney General, Daytona Beach, for Appellee.
Santos appeals his judgment and sentence and the denial of
his motion to withdraw his plea, arguing that his plea of
nolo contendere was involuntary because it was based on
misadvice or ineffective assistance of counsel. Having
reviewed the record on appeal, briefs, and authorities cited
therein, we affirm Santos' judgment and sentence, and
affirm the trial court's order denying Santos' motion
to withdraw his plea.
CLAIM OF INVOLUNTARY PLEA
was charged by information with one count of burglary of a
dwelling with a battery, a first-degree felony punishable by
life in prison, and one count of domestic violence battery, a
first-degree misdemeanor. The charges arose out of
Santos' attempt to visit the mother of their son in order
to persuade her to let him visit their child. According to
the victim's testimony, which was supported by a
surveillance video, Santos came to the victim's
residence, repeatedly tried to force his way inside, grabbed
her by her hair, ripped her shirt, and tried to pull her out
of her residence. Because they had several prior incidents of
domestic violence, there was a "no contact" order
scoresheet reflected a lowest permissible sentence of 46.2
months in prison. The State made a plea offer for a
bottom-of-the-guidelines sentence, even though the victim,
who was present at sentencing, wanted a longer sentence.
Santos rejected the State's offer and through his
privately-retained trial counsel sought a downward departure
from the 46.2 months.
trial court did an outstanding job of explaining to Santos
that he had three options: (1) proceed to trial, (2) accept
the State's plea offer, or (3) make an open plea to the
court with no promises of what sentence might be imposed. The
trial court confirmed that Santos understood each option. The
trial court also made certain that Santos knew that the court
could sentence him to any prison term, from 46.2 months to
life, and Santos acknowledged that he understood that.
See Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th
DCA 2010) ("Where the court informs a defendant of his
sentencing exposure, a defendant may not reasonably rely on a
contrary representation by counsel.").
counsel told the trial court that he would be requesting a
downward departure from the 46.2 months based on the victim
having provoked Santos into committing this crime by not
honoring a time-sharing schedule. The trial court said that
it would listen to all the testimony and review whatever
evidence each side wished to present at sentencing. The trial
court went on to explain in detail to Santos that before the
court would order a downward departure, it would first have
to determine that there was a legal basis to depart, and
whether it should exercise its discretion to depart. It
explained that it was not obliged to depart downward and
could in fact sentence Santos to life. Such conversations
during a colloquy have been held to refute claims of attorney
misadvice based on promises as to sentence length.
Ragoobar v. State, 893 So.2d 647, 648-49 (Fla. 4th
this discussion, the trial court reminded Santos that the
victim would be testifying and that she reportedly wanted
more, not less, than the 46.2-month sentence. Repeatedly,
Santos voiced his understanding of the process and his
options. Defense counsel had requested the court to explain
these things to Santos to make sure Santos understood.
counsel was given repeated opportunities to speak privately
with his client to confirm that Santos understood his options
and to determine what he wanted to do. The trial court
repeatedly told Santos that it could sentence him to more
than the 46.2 months, the bottom of the guidelines provided,
and each time Santos verbally acknowledged that he
understood. After a lengthy explanation and consultation with
counsel, Santos chose to plead no contest, open to the court.
Before accepting his plea, the trial court conducted another
detailed, thorough colloquy during which Santos confirmed
that he was satisfied with his lawyer, who had done all that
Santos wished and nothing he had not, that nobody had
threatened him or promised him anything, and that his plea
was truly voluntary.
victim testified to the violent confrontation at her house,
explained what the surveillance video showed, and filled in
the events not captured on video. Defense counsel asked for a
sidebar during the victim's testimony to see if the
State's offer of 46.2 months was still available;
however, it had been withdrawn once testimony began. The
victim completed her testimony, advising that there had been
several incidents of domestic violence before and that she
was afraid for her safety and the safety of their son. Other