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But I Don’t Want to Withdraw My Plea! The Expansive View of Rule 3.170(1)

Criminal Law

Defendant Jones strikes a plea bargain for a 30-month sentencing cap, including both prison and probation. The judge signs the written plea agreement and schedules sentencing. Complying with the plea agreement, the defendant converts his appearance bond to restitution for the alleged victims. At sentencing, the defendant has a different lawyer and judge. No one mentions the plea agreement, and the judge imposes a split sentence of 20 months in prison plus 20 months on probation, exceeding the 30-month cumulative cap. Defense counsel files a notice of appeal.

Defendant Barnes is party to a plea agreement that makes no mention of a fine. The judge signs the agreement, but at sentencing adds a $1,000 fine to the negotiated sentence. Again, no one complains, and the case goes to appeal.

Can either Jones or Barnes get relief from the part of his sanction that exceeds the plea agreement? At this point the answer is no, at least not during the direct appeal. Under recent precedent, defendants or their lawyers can raise this type of issue on appeal only by first moving to withdraw the plea within 30 days of sentencing under Fla. R. Crim. P. 3.170(l).

This development is a setback for defendants, their lawyers, and the criminal justice system. First, it forces a defendant who wants only fulfillment of his plea to take the risky, unsatisfying step of moving to withdraw it. Second, it places the onus of moving to withdraw the plea on the same attorney who failed to recognize that the sentence exceeded the plea agreement. Third, it undermines recent rule amendments giving defendants the opportunity to raise and preserve sentencing issues during the appeal via Fla. R. Crim. P. 3.800(b)(2). Nonetheless, pending a possible change in the law, trial counsel must ensure that the sentencing judge understands the complete terms of the plea agreement and does not unknowingly go beyond it. Failing that, counsel should consult defendants on whether to raise the issue after sentencing via a motion to withdraw the plea, at the risk of losing the benefit of the plea bargain.

In this article, the author will explain how the law in this area arose from the tension of the recently erected Rules 3.170(l) and 3.800(b), discuss its effect on trial counsel, suggest the appropriate role for each of the new rules on sentences exceeding plea agreements, and offer a clarifying amendment to bring these rules into better balance.

Sentencing Appeals Reform: Shifting the Burden

In 1996, the legislature passed the Criminal Appeals Reform Act (CARA), which required that sentencing errors be preserved in the trial court before they can be raised on appeal.1 Previously, appellate courts entertained sentencing errors raised by defendants for the first time on appeal. The rationale was that, unlike trial errors which usually can be corrected only by a new trial, a sentencing error is easily fixed by a simple remand, and shouldn’t be foreclosed because it wasn’t presented to the trial court.2

The legislature’s abrogation of this common-law rule prompted the Florida Supreme Court to give defendants an opportunity after sentencing to seek correction of sentencing error at the trial level, and thereby preserve the issue for appeal. The court initially authorized defendants to file a motion to correct sentencing error under Fla. R. Crim. P. 3.800(b) before the notice of appeal.3 Recognizing that errors sometimes go unrecognized until the appeal, which is often handled by different counsel, the court then provided that a defendant could also move to correct the sentencing error before the first brief is filed in the appeal.4 In Maddox v. State, 760 So. 2d 89 (Fla. 2000), the court gave notice of its strong preference for use of new Rule 3.800(b)(2), stating that for those sentenced when the new rules were in effect, “we anticipate that the interests of justice should be served by the ability of appellate counsel to first raise the issue in the trial court prior to filing the first appellate brief.” Id. at 98. District courts have followed suit, denying relief from sentencing errors that were not preserved by objection at sentencing or post-sentencing motion under Rule 3.800(b).5

Another expression of the trend toward placing the onus on defendants to seek correction of sentencing error in the trial court is the adoption of Rule 3.170(l). Until its appearance, trial courts sentencing defendants outside a plea agreement were required to offer defendants an opportunity to withdraw the plea. Failure to extend this offer resulted in reversal of the sentence and remand with directions to either impose sentence within the terms of the agreement or allow the defendant to withdraw the plea.6 The Supreme Court initiated the adoption of Rule 3.170(l) in Goins v. State, 672 So. 2d 30 (Fla. 1996). The court directed committees to “submit proposed rules which will provide a specified period of time within which a defendant could move to withdraw a plea on the grounds that the judge had imposed a sentence greater than that set forth in the plea agreement and which would further provide that the failure to file such a motion would preclude the defendant from raising the issue on appeal.” Id. at 32. The court suggested that this could be accomplished by incorporating the concept into the proposed amendments to Rule 3.800 then being germinated. Id. at 32 n.3. However, the provision subsequently adopted by the court7 appears in Rule 3.170, which governs pleas, not Rule 3.800, which concerns sentencing error. Rule 3.170(l) provides: “A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within 30 days after rendition of sentence, but only upon the grounds specified in Fla. R. App. P. 9.140(b)(2)(B)(i)-(v).”8

The second of the grounds referred to in Rule 9.140 is “a violation of the plea agreement, if preserved by a motion to withdraw the plea.”9

Thus, the rules now contain parallel provisions: one authorizing a motion to correct sentencing errors filed before either the notice of appeal or the first brief on appeal, the other authorizing a motion to withdraw the plea filed before the notice of appeal. While these rules may seem complementary, they have been interpreted to close off defendants’ options under some circumstances by forcing upon them a procedure ill-suited to the wrong they have suffered.

Plea or Sentencing Error? District Courts Navigate the New Rules

The First DCA weighed in early on the scope of new Rules 3.170(l) and 3.800(b) in Green v. State, 700 So. 2d 384 (Fla. 1st DCA 1997).10 On appeal, Green challenged the imposition of a fine not contemplated by the plea agreement, without first raising the issue in the trial court. The district court noted that the Supreme Court promulgated Rule 3.170(l) after its suggestion in Goins of a rule shifting the burden for initiating the withdrawal of a plea from the court to the defendant. The Green panel discerned from this sequence of events that the Supreme Court intended Rule 3.170(l) and not Rule 3.800(b) to be the vehicle for preserving the issue for appeal. However, because Rule 3.170(l) was not in force at the time of Green’s sentence, the court concluded that he could raise the issue for the first time on appeal without preserving it below. Id. at 386-87.

While Green benefited from the court’s differentiation of Rule 3.170(l) from 3.800(b), subsequent defendants would suffer. The Fourth DCA relied on Green in refusing to vacate a three-year mandatory minimum sentence not contemplated by the plea agreement, because the defendant had not moved to withdraw the plea under Rule 3.170(l). Hall v. State, 765 So. 2d 282 (Fla. 4th DCA 2000). Significantly, Hall’s counsel objected at sentencing to the three-year term on grounds it was not contemplated by the plea agreement. Id. at 283. This fulfilled the function of a Rule 3.800(b) motion, leaving the defendant only to either accept the plea or seek its withdrawal. The Second DCA cited to Green in refusing to reverse a sentence that exceeded the minimum guidelines sentence contemplated by the plea agreement, because the defendant had not moved to withdraw the plea. Meriweather v. State, 26 Fla. L. Weekly D408 (Fla. 2d DCA Feb. 7, 2001).

Finally, the First DCA invoked Green in ruling that a Rule 3.800(b)(2) motion to correct a sentence exceeding the plea agreement did not preserve the issue for appeal. Gafford v. State, 26 Fla. L. Weekly D1095 (Fla. 1st DCA April 26, 2001).11 Gafford bargained for a 29.9-month sentencing cap of prison plus probation, but received a split sentence of 24.3 months in prison plus two years on probation. The district court ruled that because Gafford had not moved to withdraw the plea before the notice of appeal, the trial court had no jurisdiction to entertain a motion to correct sentencing error filed by appellate counsel before the initial brief but more than six months after imposition of sentence. The opinion does not reflect whether the court was informed at the original sentencing hearing that its sanction exceeded the terms of the plea agreement.

The courts in each of these cases specified that the affirmances were without prejudice to the defendants’ right to seek relief via a motion for postconviction relief under Rule 3.850. Grounds for such motion would be ineffective assistance of trial counsel for failing to either invoke the plea agreement at sentencing or timely move to withdraw the plea.

Withdrawing the Plea: Right Solution to Wrong Problem

The decision in Gafford is problematic, for it appears to require a defendant whose sentence is inconsistent with the plea agreement to move to withdraw the plea in all circumstances, or waive the issue for direct appeal. What of the defendant who has already paid restitution as part of his plea agreement? Or the defendant who is content with all but one aspect of his sentence, such as the fine in Green? Or the defendant sentenced by a judge who, through negligence of counsel, was never informed of a plea agreement accepted by a different judge? In each scenario, Gafford compels a motion to withdraw the plea, though each defendant merely wishes to have the plea agreement fulfilled. While a defendant does not have an absolute right to specific performance of the terms of the plea,12 this is a permissible, even preferred, remedy.13 When a judge unwittingly imposes sanctions that either exceed the terms of the plea agreement, as in Gafford, or are not contemplated by the agreement, as in Green, the result is a sentencing error which can be corrected without violating the plea agreement. This error should be cognizable under Rule 3.800(b)(2), and not jurisdictionally foreclosed during the appealboth in the trial and appellate courtsby failure to timely file a motion asking for a remedy the defendant does not want.

In accord with the intent of CARA and its related rule amendments, a Rule 3.170(l) motion to withdraw the plea should be an appellate prerequisite when the trial court has rejected a defendant’s demand to be sentenced within the terms of the plea agreement, as in Hall. Failure to preserve the issue via a motion to withdraw the plea under those circumstances will leave the defendant without a remedy on direct appeal. But when a defendant seeks only to inform a trial judge that the sanction varies from the plea agreement and ask that the two be brought into harmony, Rule 3.800(b) rather than Rule 3.170(l) is the appropriate tool.

In ruling to the contrary, the First DCA has shifted the onus of raising this issue to defendants under Rule 3.850, either after or in lieu of the appeal. This is a hardship on both defendants and the trial courts, as most post-conviction movants are unrepresented and inadequately versed in legal pleadings to vindicate their rights. Moreover, this postpones any remedy by months or years, denying many incarcerated movants a timely remedy and those with short sentences any relief whatsoever.14

Living with the Law: Options and a Proposal

Though a First DCA decision, Gafford is controlling on trial courts statewide until and unless it is abrogated by court rule or met by a contrary decision in a sister court or the state Supreme Court.15 This means that sentences not contemplated by a plea agreement cannot be raised as an issue on appeal unless preserved by an objection during the sentencing hearing or a motion to withdraw the plea before the notice of appeal. Under this regime, a defendant’s trial counsel bears the burden of staying abreast of the terms of the plea agreement and informing the judge of those terms at sentencing. After sentencing, counsel must examine the written sentence16 and, if it varies from the plea agreement, decide whether to move to withdraw the plea after consulting with the defendant on the prospect of losing the other benefits of the plea. A Rule 3.170(l) motion may be filed in tandem with a Rule 3.800(b)(1) motion to correct the error of imposition of sentence without regard to the plea agreement. Both must be filed within the 30 days after sentencing alloted for the notice of appeal.

Because Gafford undermines Rule 3.800(b)(2), requires some defendants to ask for an unwanted remedy to preserve appellate rights, and inequitably postpones relief for others, the Supreme Court should consider ameliorating its impact. The court may take steps to provide that a sentence that merely varies from the plea agreement may be challenged via motion under Rule 3.800(b)(1) or (2). One way this can be accomplished is by amending Rule 9.140(b)(2)(a)(ii), to which Rule 3.170(l) refers. Rule 9.140(b)(2)(a)(ii)b could provide that a defendant may directly appeal “a violation of the plea agreement by the state, if preserved by a motion to withdraw the plea.” (Added words emphasized.) A new subsection could be added to provide for appeal from “a denial of a request to comply with the plea agreement, if preserved by a motion to withdraw the plea.” This would distinguish an unintentional divergence from the plea agreement, cognizable under Rule 3.800(b), from either a judge’s conscious departure from the agreement or the state’s failure to fulfill its obligations, both of which could only be challenged under Rule 3.170(l). Consistent with the policies supporting the adoption of Rule 3.800(b)(2),17 counsel on appeal will be better situated to recognize the inadvertent departure from the plea agreement and either rectify or preserve it for appeal by motion before filing the initial brief.


1996 Fla. Laws ch. 248, which enacted Fla. Stat. §924.051. Section 924.051(3) requires that a prejudicial error be alleged and properly preserved, and authorizes reversal of a sentence only after the court determines that prejudicial error “occurred and was properly preserved.”


State v. Rhoden

, 448 So. 2d 1013, 1016 (Fla. 1984).


Amendments to Florida Rule of Appellate Procedure 9.010(g) and Florida Rule of Criminal Procedure 3.850

, 675 So. 2d 1374 (Fla. 1996). The court increased the period for moving to correct sentencing issues from 10 to 30 days in

Amendments to the Florida Rules of Criminal Procedure

, 685 So. 2d 1253, 1271 (Fla. 1996).


Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.140 and 9.600

, 760 So. 2d 67 (Fla. 1999),

on grant of rehearing,

761 So. 2d 1015 (Fla. 2000). The court observed that the Rule 3.800(b)(2) procedure “will give appellate counsel, with expertise in detecting sentencing errors, the opportunity to identify any sentencing errors and a method to correct these errors and preserve them for appeal.” 761 So. 2d at 1018.


See, e.g., Harvey v. State

, 26 Fla. L. Weekly D54 (Fla. 1st D.C.A. Feb. 20, 2001);

Mancha v. State

, 768 So. 2d 1178 (Fla. 2d D.C.A. 2000);

Schoeller v. State

, 25 Fla. L. Weekly D2778 (Fla. 4th D.C.A. 2000);

Jones v. State

, 776 So. 2d 1117 (Fla. 5th D.C.A. 2001).


Rodriguez v. State

, 610 So. 2d 476 (Fla. 2d D.C.A. 1992);

Perry v. State

, 510 So. 2d 1083 (Fla. 2d D.C.A. 1987); and

Kiefer v. State

, 295 So. 2d 688 (Fla. 2d D.C.A. 1974). The Supreme Court approved these decisions in

Goins v. State

, 672 So. 2d 30 (Fla. 1996), while expressing dissatisfaction with the result.



, 685 So. 2d at 1257, effective January 1, 1997.


Issues cognizable in an appeal from a guilty or nolo contendere plea without reservation of the right to appeal are now listed in Fla. R. App. P. 9.140(b)(2)(ii)a through e.


Fla. R. App. P. 9.140(b)(2)(ii)b.



is the basis for the situation faced by defendant “Barnes” in the second paragraph of this article.


The dilemma of defendant “Jones” in the first paragraph is based on





, 672 So. 2d at 31.


See Spencer v. State

, 623 So. 2d 1211 (Fla. 4th D.C.A. 1993); and

Buffa v. State

, 641 So. 2d 474 (Fla. 3d D.C.A. 1993), both of which quote the passage with the concurring opinion in

Santobello v. New York

, 404 U.S. 257, 265 (1971), that in choosing between specific performance and withdrawal of a plea as the remedy for the state’s breach of a plea agreement, the court “ought to accord a defendant’s preference considerable, if not controlling weight.”


The Supreme Court expressed disdain for reliance on Rule 3.850 to cure sentencing errors in


, 760 So. 2d at 98.


See Pardo v. State

, 596 So. 2d 665, 666 (Fla. 1992) (decisions of district court of different jurisdiction binding on trial courts in absence of interdistrict conflict).


Rule 3.670 requires the clerk to serve the written sentence on counsel within 15 days of receipt.



, 761 So. 2d at 1017.

Glen P. Gifford is an appellate attorney in the Public Defender’s Office, Second Judicial Circuit, practicing in the First District Court of Appeal and the Florida Supreme Court. He has also practiced in the Fifth DCA. He received his J.D., with honors, from the University of Florida in 1986, and a B.S. in journalism from U.F. in 1982.

This column is submitted on behalf of the Criminal Law Section, Judge Dedee S. Costello, chair, and Randy E. Merrill, editor.

Criminal Law