Burglary is a charge taken seriously by Broward County prosecutors. There are different degrees of burglary. Recently, a plaintiff appealed his judgment and sentence. He appealed the judge’s denial of his motion to withdraw his nolo contendere plea. He claimed his plea was the result of bad advice or ineffective assistance of counsel, and should be treated as involuntary.
The case arose when the defendant was charged with burglary of a dwelling with a battery after reportedly trying to visit the mother of their son in order to convince her he should be able to visit the son. Burglary of a dwelling with a battery is a first degree felony for which you can face life imprisonment. The defendant was also charged with the first degree misdemeanor of domestic violence battery.
The victim claimed that the defendant came to her home, tried to force his way inside, ripped her clothes, grabbed her by the hair and tried to pull her out of the home. The surveillance footage also showed this. A no contact order was already in place from prior domestic violence episodes.
The defendant’s lowest possible sentence was 46.2 months incarceration. The government made an offer to recommend a bottom of the guidelines sentence, the lightest one. The victim wanted a sentence that was longer. The defendant rejected the government’s offer and asked for a downward departure from the 46.2 months.
The lower court explained to him his options, which included going to trial, accepting the plea offer, or pleading to the court without a promise about the sentence that might be imposed for the plea. It was confirmed the defendant understood the plea, and he understood he could even be sentenced up to life imprisonment. Where a judge directly lets a defendant know what potential sentence he is facing, the defendant can’t reasonably rely on his attorney’s different claim.
The defendant’s attorney let the court know he’d be asking for the downward departure on the grounds that the defendant was provoked by the victim, who hadn’t honored their time-sharing schedule concerning the son. The judged noted he would listen to the testimony and review evidence, but he also provided a detailed explanation directly to the defendant. He said that in order to use a downward departure, it would need to determine whether there were legal grounds to depart and to exercise its discretion to do so. In past cases, a colloquy involving this type of discussion will cut against a claim that a defense attorney gave bad advice about the length of the sentence.
The court also let the defendant know the victim would testify and wanted more, not less than 46.2 months. The defendant said he understood. The defense attorney also had a chance to confirm with his client that he understood. Even so, the defendant pled no contest. Another detailed colloquy was held in which the defendant represented he was satisfied with his attorney and that his plea really was voluntary.
The victim testified about the violence shown on the surveillance video, and also other things that had transpired and hadn’t been taped. The defense attorney requested a sidebar during the testimony to see whether the prosecutor’s offer of 46.2 months remained available. It had already been withdrawn after testimony started. The victim finished testifying, advising of several episodes of domestic violence before and that she feared for her own safety and her son’s safety. Other witnesses also testified.
The defendant merely asked the court to have mercy when he was given a chance to speak to the judge.
The defendant was adjudicated guilty of two counts and sentenced to ten years of incarceration for the burglary with battery crime. One year of probation was to follow with time served for misdemeanor battery and credit for time served on the burglary charge. The lower court found there was no reason to depart downward.
After he was sentenced the defendant asked to withdraw his plea. He said his defense attorney told him he’d get a downward departure.
The appellate court denied the defendant’s appeal. It explained that if there’s a sentence based on a plea, a defendant needs to show a manifest injustice that mandates correction in order to withdraw the plea. Otherwise, it is affirmed. In this case, the appellate court found that it was clear that the open plea to the court was a voluntary one with awareness that he could face up to life imprisonment. The lower court’s decision was affirmed.
If you’re charged with burglary in Fort Lauderdale or elsewhere in Broward County, it is crucial to hire knowledgeable counsel who can mount a strong defense. Call The Hoffman Law Firm at (954) 524-4474 or (800) 223-1866, or contact us via our online form.