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Name: People v. Mitchell
Case #: C061560
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/26/2011
Subsequent History: 8/18/11 opn. modified

A waiver of appeal must be knowing, intelligent, and voluntary. After defendant entered his change of pleas pursuant to a plea bargain, the prosecuting attorney insisted that defendant waive his right to appeal, even though appeal waiver was not an element of the bargain. The appellate court found there was no valid waiver and reached the argument presented. Waiver is an intentional relinquishment or abandonment of a known right or privilege. Here, the record did not establish that defendant knew the right of appeal he was asked to waive as the waiver was not adequately explained. Additionally, there was a suggestion of pressure by the court in that the court advised defendant it saw no issue for defendant to appeal.

A court exceeds its jurisdiction in a case with a plea bargained stipulated sentence, when it imposes sentence for an enhancement that was not committed by defendant, was not alleged, and was not admitted to by defendant. Appellant pled guilty to three counts of first degree robbery, two counts of second degree robbery, and other crimes, in exchange for a stipulated sentence and dismissal of numerous other counts. At sentencing, the court imposed sentence for robbery in concert. Because the in concert sentence enhancement was not charged and there was no admission or plea by defendant to it, imposition of sentence for the enhancement was a violation of the right to Due Process in that defendant was not given notice of the charges and enhancements against him. Although the plea bargain contained a stipulated sentence, because there was no admission or plea, or finding of the in concert enhancement, defendant was not estopped from raising the issue. [A certificate of probable cause had issued.] At the request of the Attorney General and agreement of defense counsel, the court modified the sentence to reflect a sentence without the enhancement.