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Ganey v. State4/30/2004
court to go to the bottom of the guidelines or even deviate below the guidelines. Pratt stated that he did not know whether Ganey would have pleaded had Ganey known that the 1995 guidelines would be held unconstitutional.
Ganey testified and acknowledged that Pratt told him the facts of the case were against him. Ganey was aware of the sentencing range under the 1995 guidelines, including the maximum sentence that could be imposed. He knew that if he went to trial and lost, he could have received a 19 year sentence. He decided to enter the plea based on counsel's advice that by doing so, he was likely to get a downward departure sentence. For the same reason, he did not accept the State's offer of 14 years' imprisonment. Ganey specifically testified that had he known that a top-of-the-guidelines sentence under the 1994 guidelines was 13 years, he would not have entered his plea but would have gone to trial. He explained that while he had not been willing to risk getting a 19 year sentence by going to trial, he would have been willing to risk going to trial had he known that his exposure was only 13 years' imprisonment.
Following the evidentiary hearing, the trial court entered its order denying Ganey's motion. The trial court concluded that even if Ganey had been aware of a lower potential prison sentence under the 1994 guidelines, he still would have entered the plea. Based on the specific circumstances present here, particularly Ganey's unrefuted testimony that he would not have entered his plea had he known that he was facing a maximum sentence of 13 years' imprisonment under the 1994 guidelines as compared to 19 years' imprisonment under the 1995 guidelines, we reverse.
A defendant who enters into a plea under a mistake or misapprehension about sentencing possibilities should be permitted to withdraw his plea. See Johnson v. State, 834 So.2d 384 (Fla. 2d DCA 2003) (concluding that a defendant should have been permitted to withdraw his plea when the plea was entered under the mistaken belief or misapprehension that the trial court could impose a sentence less than mandatory life imprisonment). Neither the trial court nor the parties were aware of the correct sentencing range at the time of Ganey's plea. Moreover, although the trial court believed that Ganey's decision to enter the plea was based on the unfavorable facts of the case rather than the potential prison exposure, Ganey's testimony that he would not have entered the plea had he known the correct sentencing range was unrefuted. See Gonzalez v. State, 826 So.2d 410, 411 (Fla. 2d DCA 2002). Thus, we conclude that the trial court should have allowed Ganey to withdraw his plea.
Because Ganey established that his plea was not knowing and voluntary, we reverse the denial of Ganey's motion and *448 direct the trial court, on remand, to permit Ganey to withdraw his plea.
Reversed and remanded.
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