Lee v. StateLee v. State
We have for review Lee v. State, 490 So.2d 80 (Fla. 1st DCA 1986) which the First District Court has certified as being in direct conflict with the Fourth District Court‘s decision in Fortini v. State, 472 So.2d 1383 (Fla. 4th DCA 1985), review denied, 484 So.2d 10 (Fla. 1986), on the question of whether:
WHEN A LAW ENFORCEMENT OFFICER MAKES AN INDEPENDENT RECOMMENDATION TO THE TRIAL COURT THAT RUNS COUNTER TO THE RECOMMENDATION IN A PLEA AGREEMENT ENTERED INTO BY THE STATE ATTORNEY‘S OFFICE FOR THE “STATE,” MUST THE TRIAL COURT PERMIT A WITHDRAWAL OF THE PLEA?
490 So.2d at 83. We have jurisdiction,
On November 19, 1984, Lee was charged in four counts with possession and sale of cocaine on January 19 and 20, 1984. On January 20, 1985, Lee filed a Motion to Dismiss for improper govеrnmental conduct alleging that the Florida Department of Law Enforcement entered into a fee agreement with a confidential informant which was contingent upon his purchase of cocaine from Lee. After a hearing on the matter this motion was denied.
On February 20, 1985, Lee entered a negotiated plea of nolo contendere to Count I of the information charging possession of cocaine. The plea agreement provided that:
(1) The defendant reserves his right to appeal the denial of defendant‘s motion
to dismiss for improper governmental conduct. (2) The State will recommend probation.
(3) The State will remain silent as to the withholding of adjudication of guilt.
(4) The state will enter a nolo prosequi to Counts II, III and IV of the information.
On March 13, 1985, Lee moved to withdraw his plea on the ground that the state had breached the terms of the plea agreement becаuse FDLE Agent Collins’ recommendation of incarceration was contained in the pre-sentence investigation report submitted to the Court. Defense counsel claimed surprise by this recommendation because in a deposition taken only two months prior to entering the negotiated plea, Agent Collins represented during a deposition that Lee was not considered a major drug dealer.
The trial court denied Lee‘s motion to withdraw the plea and on April 1, 1985, Lee was adjudicated guilty of possession of a controlled substance and was placed on three years probation, and ordered to serve sixty days in a Depаrtment of Corrections Institution. On appeal, the district court affirmed the trial court‘s denial of both the motion to dismiss1 and the motion to withdraw Lee‘s plea.
Although a trial court has broad discretion in determining whether to grant a motion to withdraw a plea, if it is established prior to sentencing that the state has breached its agreement to make a certain recommendation concerning sentencing or to refrain from making such a recommendation, it is clearly error for a trial court to refuse to permit withdrawal of thе plea. See Fortini v. State, 472 So.2d 1383; Wood v. State, 357 So.2d 1060 (Fla. 1st DCA 1978). Criminal Rule of Procedure 3.170(f) provides in pertinent part:
The court may, in its discretion, and shall upon good cause, at any time before a sentence, permit a plea of guilty to be withdrawn.
(emphasis added). The state‘s failure to adhere to the terms of a plea agreement even when the noncompliance is purely inadvertеnt constitutes good cause for withdrawal of a plea under this provision. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). As noted by the United States Supreme Court in Santobello, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. It has been held that when a sentencing cоurt has received and approved a plea of guilty entered upon a bargain for a prosecutor‘s recommendation of a certain sentеnce, any utterance contrary to that recommendation by representatives of the state attorney‘s office constitutes a breach of that agreement, and mandates withdrawal of the plea upon defendant‘s request. Wood v. State, 357 So.2d 1060.
The narrow issue presented in this case is whether a promise contained in a рlea agreement that the “state” will recommend a given sentence binds only the state attorney‘s office or whether it also precludes other state аgents, such as state law enforcement officers, from making sentencing recommendations contrary to the terms of the agreements. Relying on its decision in Wood v. State, 346 So.2d 143 (Fla. 1st DCA 1977), the distriсt court below held that only the state attorney is bound by such agreements. In Wood, 346 So.2d 143, the defendant had entered a plea of nolo contendere to a chargе of possession of marijuana in return for the state‘s agreement to remain mute at sentencing. As in this case, a narcotic‘s task force officer‘s recommendation that Wood be incarcerated appeared in the pre-sentence investigation report. The court rejected Wood‘s argument
As noted by the district court below, its decisions in this case and in Wood appear to be in conflict with the Fourth District Court‘s decision in Fortini. In Fortini, under circumstances which are quite similar tо those presented in this case, the Fourth District reversed the trial court‘s denial of Fortini‘s presentence motion to withdraw his plea. Fortini had entered a plea of nolo contendere to the charges against him in exchange for the assistant state attorney‘s agreement that the “state” would recommend a five year sentence. Fortini moved to withdraw his plea contending that a law enforcement officer‘s recommendation of the maximum sentence contained in the PSI violated the plea agreement. The Fortini court considered the agreement to include state law enforcement, noting that the state‘s argument thаt the agreement concerning a recommendation by the state did not include a recommendation by law enforcement was abandoned on apрeal. 472 So.2d at 1385.
In his dissent in the case sub judice Judge Ervin takes the position that “a breach [of the plea agreement] occurs if any representative of the government fails to honor a plea bargain agreement entered into between the state and the defense, particularly if it influences a consequence not contemplated by the agreement.” 490 So.2d at 84, (Ervin, J., concurring in part and dissenting in part). Under
In conclusion, we find that Lee has demonstrated good cause for the withdrawal of his plea as required under
It is so ordered.
McDONALD, C.J., and ADKINS, OVERTON, SHAW and BARKETT, JJ., concur.