Stack, the sheriff of Broward County, Florida appeals from the district court's grant of DeGaglia's petition for writ of habeas corpus. In July 1971, DeGaglia entered a negotiated plea of nolo contendere in state court to possession of heroin. The state court sentenced him to one year in the county stockade. The negotiations for the plea had focused on a sentence of probation rather than of incarceration. Contending that the state had not kept the promise of probation and had thus invalidly obtained the nolo plea, DeGaglia appealed and lost in the state courts (fully exhausting his state remedies) and then brought this petition in federal district court.

The district court concluded that the defendant had been unintentionally misled by a comment of the state judge in the course of his interrogation of the defendant to ascertain whether his plea was knowing, intelligent and voluntary. This colloquy is set out in the margin.1 The statement on which the district court based its conclusion was the state judge's remark, 'Of course, the Court gives great weight to the recommendations of the State.' Additionally, the district court concluded that DeGaglia's plea was not fully voluntary because he had not been informed of the maximum sentence which could have been the consequence of his plea.

From the record of DeGaglia's pleading proceeding and the evidentiary hearing held by the district court, it is apparent that the prosecutor promised only a recommendation of probation and fully complied with that promise. No Santobello question of prosecutorial reneging exists. The court below concluded, however, in view of the right of the defendant to withdraw his no-contest pleading at any time prior to its acceptance, that the 'great weight' comment of the trial court misled DeGaglia into an involuntary relinquishment of his right to a trial. With all respect for the conscientious approach of the district court, and despite the deference due his understanding and conclusions about the circumstances of DeGaglia's guilty plea, we are unable to agree.

Before the comment was made, a rather full interrogation of the defendant had already been accomplished by the state judge without any indication of a want of knowledge or of intelligent and voluntary consent on the part of the defendant. The comment of the court came rather late in the process of the interrogation. At the outset of the interrogation, defendant's counsel had remarked, and later replied to a question of the court, both times in the presence and hearing of the defendant, that the bargain struck with the prosecutor was for a recommendation only; and the defendant had affirmed that he understood that the only promise made was for a recommendation. All of this had transpired prior to the remark on which the district court focused. Finally, at the conclusion of the entire interrogation, the court, again in the presence and hearing of the defendant, ordered a pre-sentence investigation. In the light of this order, the defendant could not reasonably have thought that the court regarded the question of his sentence as concluded by any bargain or that the court would have put the Florida Parole Commission to the trouble of such an investigation if the court had already determined to grant probation and intended the investigation to be a mere mummery.

We in no sense retreat from our recognition in United States v. Frontero, 452 F.2d 406 (5th Cir., 1971), that the possibility of a misunderstanding is inherent in the plea bargaining process. We simply hold, consistent with Frontero, that DeGaglia has not shown a bargain based on a misunderstanding which acted as an inducement for his plea and destroyed the requisite voluntariness.

In addition, the district court judge granted the petition on the ground that the state judge had not informed DeGaglia of the maximum possible sentence under the charge. Petitioner has never presented this claim to the Florida courts, and the court should not have considered it. We vacate the court's decision on this issue and remand for a dismissal without prejudice of this claim.

Reversed in part; remanded in part.