Forbert v. State, 437 So. 2d 1079 (Fla. 1983). · Go Syfert
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Forbert v. State, 437 So. 2d 1079 (Fla. 1983). Cases Citing This Book View Copy Cite
75 citation events (13 in the last 25 years) across 6 distinct courts.
Strongest positive: Donaldson v. State (fladistctapp, 2014-09-03)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 41 distinct citers. How cited ↗
discussed Cited as authority (rule) Donaldson v. State
Fla. Dist. Ct. App. · 2014 · confidence medium
When a defendant enters into a plea agreement for an illegal sentence, the correction of the illegal sentence does not necessarily preclude the defendant from stating a claim that his plea was involuntary. “[W]hen a defendant pleads guilty with the understanding that the sentence he or she receives in exchange is legal, when in fact the sen *1223 tence is not legal, the defendant should be given the opportunity to withdraw the plea when later challenging the legality of the sentence.” Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983).
discussed Cited as authority (rule) Clark v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2011 · confidence medium
Id. at 535-56 (third alteration in original) (emphasis added); see also Beech v. State, 436 So.2d 82, 83 (Fla.1983) (“[I]n correcting a voidable order of punishment for a criminal offense[,] a trial judge may impose a sentence of imprisonment no longer than the originally ordered combined period of incarceration and probation ... the sentences imposed in these cases did not deprive the petitioners of due process of law.” (emphasis added)); Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983) (same); Harris v. State, 645 So.2d 386, 388 (Fla. 1994) (“[T]he Double Jeopardy Clause is not an abs…
discussed Cited as authority (rule) Williams v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983) (citations omitted); see also Williams v. State, 618 So.2d 773, 774 (Fla. 5th DCA 1993) (holding that, where mutual mistake resulted in illegal sentence, defendant should have opportunity to agree to illegality or withdraw plea).
cited Cited as authority (rule) State v. Boswell
Kan. Ct. App. · 2001 · confidence medium
App. 1981), and the Florida Supreme Court approved these holdings in Forbert v. State, 437 So. 2d 1079, 1081 (Fla. 1983).
discussed Cited as authority (rule) State v. Bryant
Fla. Dist. Ct. App. · 2000 · confidence medium
Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983).
discussed Cited as authority (rule) McConnell v. State
Tenn. · 2000 · confidence medium
See, e.g., Chae v. People, 780 P.2d 481, 486 (Colo.1989) ("[W]hen a defendant enters into a plea agreement that includes as a material element a recommendation for an illegal sentence and the illegal sentence is in fact imposed on the defendant, the guilty plea is invalid and must be vacated because the basis on which the defendant entered the plea included the impermissible inducement of an illegal sentence.”); Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983) (”[W]hen a defendant pleads guilty with the understanding that the sentence he or she receives in exchange is legal, when in fact …
discussed Cited as authority (rule) State v. Arviso
Utah Ct. App. · 1999 · confidence medium
Even if a defendant, the prosecutor and the court agree on a sentence, the court cannot give effect to it if it is not authorized by law.”); Chae v. People, 780 P.2d 481, 487 (Colo.1989) (“[W]e cannot uphold a plea bargain that has as its object an illegal sentence.”); Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983) (“It is a well-established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea.
cited Cited as authority (rule) Francois v. State
Fla. Dist. Ct. App. · 1996 · confidence medium
Forbert v. State, 437 So.2d 1079, 1080-81 (Fla.1983); Brod v. State, 437 So.2d 152, 153 (Fla.1983); Beech v. State, 436 So.2d 82, 83-84 (Fla. 1983).
discussed Cited as authority (rule) Demcak v. State
Fla. Dist. Ct. App. · 1993 · confidence medium
Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983); Perez v. State, 596 So.2d 487 (Fla. 5th DCA 1992); McCollun v. State, 586 So.2d 490 (Fla. 1st DCA 1991); King v. State, 578 So.2d 23 (Fla. 4th DCA 1991); Kirkland v. State, 575 So.2d 1315 (Fla. 2d DCA 1991); Humphries v. State, 563 So.2d 1124 (Fla. 2d DCA 1990).
cited Cited as authority (rule) Perez v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983); Brown v. State, 245 So.2d 41 (Fla. 1971); Wade v. State, 488 So.2d 127 (Fla. 3d DCA 1986); Yesnes v. State, 440 So.2d 628 (Fla. 1st DCA 1983).
discussed Cited as authority (rule) Lines v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
All of the above cases stand for the proposition “that a defendant should be allowed to withdraw a plea ... where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea.” Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983).
cited Cited as authority (rule) Gainer v. State
Fla. Dist. Ct. App. · 1991 · confidence medium
Hingson at 769 citing Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983).
discussed Cited as authority (rule) Gust v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
Indeed, the rule is well established "that a defendant should be allowed to withdraw a plea of guilty where the plea is based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea." Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983).
cited Cited as authority (rule) Hingson v. State
Fla. Dist. Ct. App. · 1989 · confidence medium
Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983); Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981); Britt v. State, 352 So.2d 148 (Fla. 2d DCA 1977).
examined Cited as authority (rule) Chae v. People (6×) also: Cited "see"
Colo. · 1989 · confidence medium
Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983), which the majority cites, is from this line of cases.
cited Cited as authority (rule) Shell v. State
Fla. Dist. Ct. App. · 1987 · confidence medium
Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983).
discussed Cited as authority (rule) Wade v. State
Fla. Dist. Ct. App. · 1986 · confidence medium
It is well-established that a defendant should be permitted to withdraw a guilty plea when such plea "was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea." Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983), and cases cited therein; Vaprin v. State, 437 So.2d 177 (Fla. 3d DCA 1983).
cited Cited as authority (rule) Ritchie v. State
Fla. Dist. Ct. App. · 1984 · confidence medium
Forbert v. State, 437 So.2d 1079, 1081 (Fla. 1983); Brown v. State, 245 So.2d 41, 44 (Fla. 1971); Richardson v. State, 432 So.2d 750, 751 (Fla. 2d DCA 1983).
discussed Cited "see" FIGUERREO v. State
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983); State v. Galazz, 2 So.3d 1083, 1084 (Fla. 3d DCA 2009); Epperson v. State, 955 So.2d 642, 643-44 (Fla. 4th DCA 2007); Gifford v. State, 744 So.2d 1046, 1047-48 (Fla. 4th DCA 1999); Ruiz v. State, 537 So.2d 682, 683 (Fla. 3d DCA 1989).
discussed Cited "see" Woodall v. State (2×)
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla.1983); Geiger v. State, 532 So.2d 1298 (Fla. 2d DCA 1988).
cited Cited "see" Muse v. State
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983).
cited Cited "see" Harper v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla.1983); Rogers v. State, 864 So.2d 521 (Fla. 5th DCA 2004).
discussed Cited "see" Banks v. State
Fla. · 2004 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983); see also e.g., Brown v. State, 245 So.2d 41 (Fla.1971) (holding that a judge should be liberal in the exercise of his discretion to allow withdrawal of a plea where it is shown that the plea was based upon a failure of communication or misunderstanding of the facts); Catinella v. State, 732 So.2d 444 (Fla. 4th DCA 1999) (reiterating that a plea of guilty should be entered *1197 voluntarily by one who is competent to know the consequences and should not be induced by fear, misapprehension, undue persuasion, promises, mistake, fraud, inadver…
discussed Cited "see" Booker v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983); see also e.g., Brown v. State, 245 So.2d 41 (Fla.1971) (holding that a judge should be liberal in the exercise of his discretion to allow withdrawal of a plea where it is shown that the plea was based upon a failure of communication or misunderstanding of the facts); Catinella v. State, 732 So.2d 444 (Fla. 4th DCA 1999), (reiterating that a plea of guilty should be entered voluntarily by one who is competent to know the consequences and should not be induced by fear, misapprehension, undue persuasion, promises, mistake, fraud, inadvertence…
discussed Cited "see" Powell v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983); Brown v. State, 647 So.2d 197, 198 (Fla. 1st DCA 1994); Eggers v. State, 624 So.2d 336, 338 (Fla. 1st DCA 1993); Hingson v. State, 553 So.2d 768, 769 (Fla. 1st DCA 1989).
cited Cited "see" Boatwright v. State
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla. 1983); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
cited Cited "see" JMG v. State
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla. 1983).
cited Cited "see" J.M.G. v. State
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla.1983).
discussed Cited "see" Watkins v. State
Fla. Dist. Ct. App. · 1993 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla. 1983); Arnett v. State, 598 So.2d 235 (Fla. 1st DCA 1992); Morris v. State, 620 So.2d 1081 (Fla. 2d DCA 1993); Davidson v. State, 468 So.2d 263 (Fla. 2d DCA 1985); *1151 Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
cited Cited "see" Morris v. State
Fla. Dist. Ct. App. · 1993 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla.1983).
cited Cited "see" Ruiz v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla. 1983); Cleveland; see also Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
cited Cited "see" Deprycker v. State
Fla. Dist. Ct. App. · 1986 · signal: see · confidence high
See also Ritchie v. State, 458 So.2d 877 (Fla. 2d DCA 1984); Banks v. State, 136 So.2d 25 (Fla. 1st DCA 1962); see generally Forbert v. State, 437 So.2d 1079 (Fla.1983).
cited Cited "see" Brown v. State
Fla. Dist. Ct. App. · 1984 · signal: see · confidence high
Beech v. State, 436 So.2d 82 (Fla.1983); see Forbert v. State, 437 So.2d 1079 (Fla.1983).
cited Cited "see" Lynn v. State
Fla. Dist. Ct. App. · 1984 · signal: see · confidence high
See Forbert v. State, 437 So.2d 1079 (Fla.1983); and Chaney v. State, 452 So.2d 1148 (Fla. 5th DCA 1984).
cited Cited "see" Campbell v. State
Fla. Dist. Ct. App. · 1984 · signal: see · confidence high
See, Forbert v. State, 437 So.2d 1079 (Fla. 1983); Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
discussed Cited "see, e.g." Shorter v. State
Fla. Dist. Ct. App. · 2013 · signal: see, e.g. · confidence medium
See, e.g., Forberb v. State, 437 So.2d 1079, 1081 (Fla.1983) (“It is a well established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea.”).
discussed Cited "see, e.g." Quintana v. State
Fla. Dist. Ct. App. · 2005 · signal: see, e.g. · confidence medium
See, e.g., Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983)("It is a well established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea."); Wade v. State, 488 So.2d 127, 129 (Fla. 3d DCA 1986)(accord); see also Waldrop v. State, 882 So.2d 1047 (Fla. 1st DCA 2004)(trial court abused its discretion in denying defendant's motion to withdraw where defendant was misinformed that a withholding of adjudication of guilt, probation, and no sex-offen…
discussed Cited "see, e.g." People v. Antonio-Antimo
Colo. · 2000 · signal: see also · confidence medium
See Chae v. People, 780 P.2d 481, 486 (Colo.1983); see also Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983) ("It is a well-established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea."); Rojas v. State, 52 Md.App. 440 , 450 A.2d 490, 492 (1982); People v. Benard, 164 Misc.2d 323 , 624 NYS.2d 744, 748 (N.Y.Sup.1995); State v. Turgeon, 161 Vt. 561 , 641 A.2d 88, 89 (1993).
cited Cited "see, e.g." Farmer v. State
Fla. Dist. Ct. App. · 1994 · signal: see, e.g. · confidence low
See, e.g., Forbert v. State, 437 So.2d 1079 (Fla.1983).
cited Cited "see, e.g." Ford v. State
Fla. Dist. Ct. App. · 1991 · signal: see, e.g. · confidence low
See, e.g., Forbert v. State, 437 So.2d 1079 (Fla.1983); Parker v. State, 576 So.2d 943 (Fla. 1st DCA 1991); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
cited Cited "see, e.g." Martinez v. State
Fla. Dist. Ct. App. · 1985 · signal: see, e.g. · confidence low
See, e.g., Forbert v. State, 437 So.2d 1079 (Fla.1983); Dominquez v. State, 432 So.2d 799 (Fla. 2d DCA 1983); Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983).
Retrieving the full opinion text from the archive…
Dan FORBERT, Petitioner,
v.
STATE of Florida, Respondent.
62302.
Supreme Court of Florida.
Jul 28, 1983.
437 So. 2d 1079
Boyd.
Cited by 62 opinions  |  Published

[*1080] Alan H. Schreiber, Public Defender and T. Don Tenbrook, Asst. Public Defender, Seventeenth Judicial Circuit, Fort Lauderdale, for petitioner.

Jim Smith, Atty. Gen. and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for respondent.

BOYD, Justice.

This case is before the Court for review of the decision in Forbert v. State, 415 So.2d 96 (Fla. 4th DCA 1982). The district court certified four questions passed upon by the decision as being of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Forbert pled guilty to a charge of robbery in exchange for a "split sentence" of five years imprisonment and three years' probation. He subsequently filed a motion pro se to correct his sentence on the authority of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981). The attorney appointed to represent Forbert at the hearing on the motion argued that resentencing Forbert to any term of imprisonment longer than five years would be a violation of Forbert's constitutional rights to be free from double jeopardy and of due process and would also be outside the limit on incarceration contemplated in the original plea agreement. Nevertheless the court resentenced Forbert to eight years in prison with credit for time served. On appeal the district court of appeal affirmed, certifying the following questions to be of great public importance:

1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the imprisonment and probation originally imposed? If not, what is the maximum sentence?
2. If the sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of [North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)]?
3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearce?
4. If the original sentence was imposed pursuant to and as part of a negotiated plea, in resentencing a defendant upon a Villery motion to correct an illegal sentence can the trial court impose a longer sentence of imprisonment than originally imposed without giving the defendant[*1081] an opportunity to withdraw his negotiated plea?

415 So.2d at 97-98.

The first three questions are identical to those answered by this Court in Beech v. State, 436 So.2d 82 (Fla. 1983), wherein we held that a judge in correcting a sentence rendered illegal by our decision in Villery may resentence the defendant to serve a term of imprisonment not longer than the combined terms of imprisonment and probation originally imposed without having to comply with the requirements of Pearce. As for the fourth question, we answer in the negative.

It is a well-established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea. Brown v. State, 245 So.2d 41 (Fla. 1971); Rubenstein v. State, 50 So.2d 708 (Fla. 1951). Hence when a defendant pleads guilty with the understanding that the sentence he or she receives in exchange is legal, when in fact the sentence is not legal, the defendant should be given the opportunity to withdraw the plea when later challenging the legality of the sentence. Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981); Britt v. State, 352 So.2d 148 (Fla. 2d DCA 1977). In Cleveland and Britt the defendants agreed to serve sentences exceeding the maximum sentences authorized for the crimes to which they pled guilty. Reasoning that the defendants had negotiated with a misunderstanding of the appropriate penalties, the courts ruled that the defendants were to be allowed to withdraw their pleas of guilty when challenging the illegal sentences. Cleveland went a step further and stated that the state could "exercise its option to accept the plea with the sentence reduced to a legal term." 394 So.2d at 230. See also Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981). Jolly reasoned that since the state may not have witnesses or other evidence available in cases where a defendant moves to withdraw his plea months or years after entering it, the state should have the option of either agreeing that the judgment and sentence should both be vacated or holding the defendant to his plea of guilty and vacating only the excessive portion of the sentence.

We agree with the reasoning of these decisions. In this case Forbert pled guilty with the understanding that the sentence he was to receive in exchange, five years' imprisonment followed by three years of probation, was statutorily authorized. Because "split sentences" of this type were declared illegal by our decision in Villery, Forbert had the right to have his sentence corrected so that it conformed to the law. When the judge indicated that he would resentence Forbert to eight years in prison, Forbert sought to withdraw his plea of guilty since such a sentence was not what he had bargained for. The court should then have either allowed Forbert to withdraw his plea, reinstating the charges originally filed against him, or should have resentenced him within the parameters of the plea agreement. He could have performed the latter by changing the term of incarceration exceeding one year to probation or by vacating the probation portion of the original sentence. Since Forbert, by moving to withdraw his plea of guilty, has indicated a desire to be no longer bound by the original plea agreement, if he renews his motion the state will also be released from its obligations under that agreement. Therefore if the court allows withdrawal of the plea the state can insist that the original charges be reinstated against Forbert. Peak v. State, 399 So.2d 1043 (Fla. 5th DCA 1981).

The trial court erred by denying Forbert's motion to withdraw his plea of guilty. We therefore remand this case with instructions that Forbert be allowed the opportunity to renew his motion to withdraw his plea of guilty. If the judge declines to conform the sentence of imprisonment to the limits of the original plea agreement, then the motion to withdraw plea should be granted.

It is so ordered.

[*1082] ALDERMAN, C.J., and ADKINS, OVERTON and EHRLICH, JJ., concur.

McDONALD, J., concurs in result only.