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Whipple v. State6/27/2001
We reverse the court's denial of his motion to withdraw plea and hold that the trial court erred in permanently revoking appellant's driver's license.
Appellant was charged by Information with DUI with serious bodily injury (count I); DUI with injury to property or person (count II); and no valid driver's license causing serious bodily injury (count III). The Information alleged that on January 28, 1999, while driving under the influence of alcohol, appellant inflicted serious bodily injury to Elaine Girgis and caused property damage to the Academy for Little People.
On June 17, 1999, appellant entered a plea of guilty in open court. Prior to accepting his plea, upon inquiry by the court, appellant stated that he was entering the plea of his own free will. The court explained that if it accepted his plea, he would be doing so without any guarantee as to the sentence he would receive and that he could be sentenced within the guidelines between 55 months and 11 years in prison. Appellant replied that he understood. After establishing a factual basis for the plea, the court accepted appellant's guilty plea and noted that the plea was freely and voluntarily entered into and that appellant had full knowledge of the possible consequences.
At the July 20, 1999, sentencing hearing, the trial court reviewed the PSI, heard from the victim, and reviewed the guidelines scoresheet. At the time of the accident, appellant had a .26 percent alcohol blood draw and had a prior DUI conviction. The state recommended that the court impose a sentence that sends "a clear and convincing statement to Mr. Whipple" that what he did was wrong. The victim and her family wanted a below guidelines sentence for appellant because they were concerned that if appellant was incarcerated, he would not be able to work, and therefore, would be unable to make restitution.
The trial judge inquired as to the mandatory conditions which must be imposed by statute and the state stated that the court would have to suspend appellant's license for at least a year. The court sentenced appellant on count I to 60 months in the Department of Corrections with credit for time served. On counts II and III, appellant was sentenced to five years probation, consecutive to his term of incarceration. The court required that appellant receive alcohol treatment while incarcerated and permanently revoked appellant's driver's license.
Appellant filed a motion to withdraw his plea and argued that the trial court erred in permanently revoking his driver's license on the grounds that he had only one prior DUI (November 7, 1997). He claimed that the PSI incorrectly reflected a DUI conviction on May 27, 1993. The charge stemming from that 1993 incident resulted in a reckless driving charge and the DUI was nolle prossed. Appellant argued that only one of the two DUI's in the present case could be counted for suspension purposes, and thus, he did not qualify for a lifetime suspension under section 322.28(2)(a)3. Next, he claimed that he was not informed that he was eligible for a permanent revocation of his driver's license by his former attorney. Rather, he claimed his former attorney told him that he could be suspended for no more than five years. Lastly, he claimed that the trial court erred in assessing victim injury points.
At the hearing on the motion to withdraw plea, appellant's former attorney, Gerald Salerno, testified that he was surprised by the lifetime driver's license suspension because he did not believe that section 322.28 called for a lifetime suspension. Salerno had no recollection of seeing any authority presented to him by the state authorizing such a suspension. Salerno never discussed
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