Bagley v. State
Bagley v. State
Opinion
James Edward Bagley, the appellant, pleaded guilty to two counts of theft of property in the first degree, a violation of ยง
A deficiency in a guilty plea proceeding must be brought to the attention of the trial court by a timely objection, a motion to withdraw the plea, or a motion for a new trial; otherwise it is waived on appeal. Willis v. State,
"The appellant argues that the trial court erred by failing to find that he was entitled to the enforcement of his plea bargain or, in the alternative, to withdraw his plea. However, the record indicates that the appellant failed to object to the trial court's failure to enforce the plea bargain by failing to move to withdraw his guilty plea, and similarly that he did not preserve any error in the trial court's failure to allow him to withdraw his guilty plea by failing to so move at [the] trial court level. Therefore, this matter is waived."
599 So.2d at 85. However, in this case, the appellant, acting pro se, did file, within 30 days of sentencing, a "Motion For Nun[c] Pro Tunc Order Pursuant To A.R.C[rim].P. Rule 26.12(c)," in which he alleged that he was not sentenced in accordance with an existing plea agreement and stated that he "was told that he would be given probation by his attorney . . ., and the district attorney['s] office . . ., before he pled guilty." C.R. 74. The appellant did not use the precise language in this motion that he wished to "withdraw his guilty plea." While these facts present an admittedly close case, we conclude, based upon the particular facts of this case, that the appellant's motion placed the trial court on notice that he wanted to withdraw his plea because the appellant was objecting to not being sentenced in accordance with the purported plea agreement. See Pitts v. State,
No written plea agreement is contained in the record. However, during the guilty plea proceeding, on January 26, 1994, the following occurred:
"THE COURT: Has anyone told you or promised or suggested to you that you will receive a lighter sentence, probation or any other favor to get you to plead guilty?
"THE DEFENDANT: They offered me probation, sir. I have a pre-probation sentence.
"THE COURT: Sir?
"THE DEFENDANT: They offered me probation.
"MR. HEDGSPETH [(prosecutor)]: Part of our plea agreement, Your Honor, but not as far as is with regard to any inducement to plead.
"THE COURT: My question to you, sir, are you pleading guilty of your own โ
"THE DEFENDANT: Yes, sir.
"THE COURT: I understand there's a plea arrangement, and it's my understanding if you have no prior felony convictions you'll receive a seven[-]year sentence and you'll be placed on probation?
"THE DEFENDANT: Yes, sir.
"THE COURT: I understand that?
"THE DEFENDANT: All right."
R. 9-10 (Emphasis added.).
Sentencing was continued to April 13, 1994, and a pre-sentencing report was ordered. C.R. 13-14. On April 13, 1994, sentencing was continued to May 18, 1994. C.R. 15. The appellant failed to appear and was arrested on April 11, 1995. C.R. 16, 25-26. Sentencing finally took place on May 16, 1995. R. 14.
It appears from the record that due to the unusually long period between the guilty plea proceeding and sentencing and the fact that the plea agreement was apparently oral, the prosecutor, defense counsel, and the trial judge may simply have forgotten at the sentencing hearing that the State had agreed to recommend probation as part of the plea *Page 265 agreement. Moreover, the prosecutor who appeared at sentencing was not the same prosecutor who had appeared at the guilty plea proceeding. The prosecutor made no recommendations at sentencing. After the judge sentenced the appellant, the judge asked him if he had requested probation, the appellant answered affirmatively, and the judge denied the request. R. 27. Defense counsel did not object to the sentence during the hearing. Nothing in the record indicates that the appellant had any prior felony convictions.
"[T]he trial court is not bound to accept an agreement between the defense and prosecution." Ex parte Yarber,
AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.*
All Judges concur.
Reference
- Full Case Name
- James Edward Bagley v. State.
- Cited By
- 14 cases
- Status
- Published