Opinion
No. 96-05251.
Opinion Filed December 19, 1997.
An appeal from Circuit Court for Polk County, E. Randolph Bentley, Judge.
Stephen J. Penty, appellant pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for appellee.
Stephen Penty challenges certain probation conditions and costs imposed upon him as part of his sentence for aggravated assault. We strike the condition requiring him to pay for evaluation and treatment for drug or alcohol abuse because it is a special condition of probation which was not pronounced at sentencing. See Fennell v. State, 694 So.2d 873 (Fla. 2d DCA 1997). We also strike the condition prohibiting Penty from consuming alcohol because it was not pronounced at sentencing. See Fennell, 694 So.2d at 874. The condition requiring Penty to work faithfully at suitable employment must be modified to add the phrase "insofar as may be possible." See Washington v. State, 685 So.2d 868 (Fla. 2d DCA 1996); Godley v. State, 659 So.2d 447 (Fla. 2d DCA 1995).
Penty's argument that the trial court failed to announce the condition requiring him to pay for random testing for the presence of drugs or alcohol has no merit. The trial court stated at sentencing that Penty was to submit to "random urinalysis at the defendant's expense."
Penty correctly argues that the trial court erred in failing to advise him of his right to contest the amount of the public defender's lien. Therefore, we remand this case to the trial court to give Penty thirty days from the date of this mandate to file an objection in the trial court. If he files an objection, the cost must be stricken. The cost may be reimposed with proper notice and a hearing. See Fla.R.Crim.P. 3.720 (d)(1); Bourque v. State, 595 So.2d 222 (Fla. 2d DCA 1992). The other costs that Penty claims were imposed without notice are all mandatory and need not be pronounced at sentencing. Further, as the State points out, Penty agreed to pay up to $300 in costs in his plea agreement.
Affirmed in part and remanded; certain probation conditions stricken or modified.
CAMPBELL, A.(C J., and FRANK, J., concur.
MOTION FOR REHEARING AND/OR REQUEST FOR CERTIFICATION EN BANC
This matter is before the court on motion for rehearing filed by one of the defendants, Allen Silas. Mainly, Silas urges that the state did not present an adequate objection to the court's promise to downward depart in exchange for a guilty plea by Silas. We find the objection to have been adequate.
We have also taken time to reflect on our opinion and to consider the views of its critics. When our opinion was initially issued, we had not seen this plea bargain practice anywhere else in the district nor had the practice been brought to our attention. In condemning the practice by unanimous vote of the court, we stated what we believed to be an expression of the obvious. As another court has explained:
There are a number of valid reasons for keeping the trial judge out of plea discussions, including the following: (1) judicial participation in the discussions can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge; (2) judicial participation in the discussions makes it difficult for the judge objectively to determine the voluntariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report; and (4) the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent. (citation omitted, footnote omitted).
State v. Buckalew, 561 P.2d 289, 291 (Alaska 1977). To this list, which is taken substantially from the ABA Standards Relating to Pleas of Guilty § 3.3 (a), Commentary at 72-73 (1968), we add considerations of concern for victims' legislatively created rights. Section 921.143, Florida Statutes, requires that before the court imposes a sentence upon any defendant, it must first hear from the victim. Since the victim has the statutory right to be heard at sentencing, due process requires that he or she not only be given notice of the sentencing hearing but also that such victim will be heard at a "meaningful" time. It is not a meaningful time to hear the victim after the court has pre-determined the sentence in order to get a plea agreement. The victim should not be required to change the court's mind. A pre-disposed judge does not give the appearance of impartiality.
In the cases before us, we are faced with fully negotiated sentencing agreements to which the state objected and in which it had no participation. We see the practice of the trial judge expressing general sentencing policies that may help inform a plea agreement between the state and a defendant or which may influence the unilateral decision by defendant to offer a guilty plea as qualitatively different from the activity we have disallowed. If done carefully, the former is not objectionable. In State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), the court was presented with yet a third scenario: the trial court had suggested to the defendant that it would impose a downward departure sentence in response to a plea to the charges, whereupon the defendant, on a later date, pled guilty to the charges. The Warner court, citing the supreme court's decision in Davis v. State, 308 So.2d 27, 29 (Fla. 1975), urges that such "plea agreements" are not objectionable because they are not truly "agreements." Because the court cannot be bound to impose the sentence that the court either "suggested" or "agreed to," the Warner court finds there really is no "plea bargain" that the state can complain about. The court can simply change its mind at any point and impose whatever sentence it pleases. If this occurs, however, the defendant is entitled to withdraw his plea. What the Warner court approved appears to be in the nature of a criminal equivalent of "quasi-contract." Because the judge knew a defendant expected to receive the sentence stated by the judge, and because the defendant did rely upon it in offering the plea, if the court fails to sentence in accordance with its representation, the defendant can rescind. If, on the other hand, the court acts in a manner consistent with its representation, there is no basis for the state to complain. This seems to us the worse of all worlds: one that permits judicial "representations," "agreements," or "suggestions" that are, in effect, plea bargains but which give the court free rein to renege on them. As a panel of this court recently observed:
We disagree with State v. Warner, 721 So.2d 767, 23 Fla. L. Weekly D2540 (Nov. 18, 1998), that simply because the court's commitment is not binding, it is somehow appropriate. Why is the court's commitment not enforceable? Is it because its commitment is conditioned or because public policy simply will not permit such a binding commitment? We believe the State, representing the victim(s), and the victim(s) if the victim(s) appears at sentencing, are entitled to present their argument as to an appropriate sentence to an uncommitted judge. They should not have the burden of having to convince a judge that he or she should renege on his or her previous commitment. It is unseemly for a judge, the personification of the lady with the blindfold and set of scale to make an independent compact with an admitted felon to sentence him to less than the law prescribes.
State v. Clark, 724 So.2d 653, 664, n. 2 (Fla. 5th DCA.Jan. 15, 1999).
In Davis v. State, cited by the Warner court, although there is reference to an agreement between the defense and the court, one cannot tell if it was a true negotiated plea agreement. Further, there is no indication that the state opposed the concession made by the court, if it was a true negotiated plea agreement, in order to induce a plea. Perhaps the parties (the state and the defense) asked the judge what he would do if the defendant pleaded guilty. The state may have acquiesced to the judge's indicated sentence and thus the plea was entered. Moreover, the issue in Davis was whether the court's agreement could he specifically enforced.
If in fact the court's agreement in Davis was the product of a conference between the state, the defense, and the court in which the parties sought the court's assistance in resolving the matter after which the parties' concurrence in the court's proposed resolution led to a plea, then the process was consistent with the present position of the American Bar Association Standards for Criminal Justice. Standard 14 — 3.3 (c) provides:
(c) When the parties are unable to reach a plea agreement, if the defense counsel and the prosecutor agree, they may request to meet with the judge in order to discuss a plea agreement. If the judge agrees to meet with the parties, the judge shall serve as a moderator in listening to their respective presentations concerning appropriate charge or sentence concessions. Following the presentation of the parties, the judge may indicate what charge or sentence concessions would be acceptable or whether the judge wishes to have a preplea report before rendering a decision. The parties may thereupon decide among themselves, outside the presence of the court, whether to accept or reject the plea agreement tendered by the court
But even this approach is beyond the authority contained in Florida Rule of Criminal 3.171 (d) relating to the court's responsibility in plea agreements:
After an agreement on a plea has been reached, the trial judge may have made known to him or her the agreement and reasons therefor prior to the acceptance of the plea. Thereafter, the judge shall advise the parties whether other factors (unknown at the time) may make his or her concurrence impossible.
This provision was approved by the Florida Supreme Court shortly before Davis. It seems to embrace the notion that the trial judge should not be involved in sentence negotiations until after the parties reach a tentative agreement. Where the supreme court in Davis said "we refrain from condemning the practice per se," we do not believe the court intended to authorize a direct and exclusive agreement between the court and the defendant. We believe instead that it was contemplating the present position of the American Bar Association, which is that the judge, with the consent of both parties, can participate in the sentence discussions to the extent that he or she can indicate what sentence would be acceptable or what concessions would be required. But whether an agreement should be reached on the judge's terms would rest exclusively with the parties. If the parties acquiesce to the judges's terms, then it might be referred to as the judge's agreement when, in effect, it is the parties' agreement pre-approved by the court.
Nothing argues for this unsavory practice except expedience. If, in fact, criminal dockets have reached a critical mass, it would be better, as with prison overcrowding, that there be a systemic solution, even if drastic, rather than to have judges appear to sell their discretion in order to make a deal. We agree with the Second Circuit Court of Appeals in United States v. Werker, 535 F.2d 198 (2d Cir. 1976) that:
[Judicial] participation in the plea bargaining process depreciates the image of the trial judge that is necessary to public confidence in the impartial and objective administration of criminal justice. As a result of his participation, the judge is no longer a judicial officer or a neutral arbiter. Rather, he becomes or seems to become an advocate for the resolution he has suggested to the defendant. (Footnote omitted).
Against expedience is all that we have referred to above, plus the risk that a higher court will be called upon to review and set aside such pleas as coercive. In the Matter of Cox, 553 A.2d 1255 (Maine 1989); see also Wanda Wakefield, Judge's Participation in Plea Bargaining Negotiations as Rendering Accused's Guilty Plea Involuntary, 10 A.L.R.4th 689 (1981).
The motion for rehearing and request for certification are denied. The court sua sponte issues a corrected opinion.
DENIED.
DAUKSCH, COBB, W. SHARP, GOSHORN, PETERSON, THOMPSON, and ANTOON, JJ., concur.
HARRIS, J., concurs and concurs specially, with opinion, in which DAUKSCH, J., concurs.
I concur with Judge Griffin that the judge's direct negotiation of a plea agreement with the defendant over the objections of the state is not permitted. I write because the position taken by the Fourth District in State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), raises a question of constitutional proportions which warrants further discussion. It a judge in direct dealing with the defendant states, "If you agree to plead, I'll give you two years," has not the judge, at least by implication, said, "If you don't plead, I'll give you more"? The trial judge in Barker v. State, 259 So.2d 200 (Fla. 2d DCA 1972), recognized this problem and specifically advised the defendant that he would get probation whether he pled or whether he was found guilty by the jury. Perhaps judges now believe that this approach, is not sufficient inducement to extract a plea. After all, if there is no inducement not to go to trial, either financially (normally the Public Defender is involved) or in the possibility of a greater sentence after trial, why should the defendant not seek an acquittal?
Judge Anstead, writing for the Fourth District in Gallucci v. State, 371 So.2d 148, 149 (Fla. 4th DCA 1979), in reversing a sentence, observed:
[W]e cannot overlook the court's own statement that after a jury trial probation will be denied "unless it is very, very odd and weird circumstances." On its face the statement implies that those that demand a trial will be treated differently than those that do not. Such different treatment is not permitted.
The Florida Supreme Court in City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla. 1985) (quoting United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)), was more emphatic:
The law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.
There is a material difference between a court, after hearing a presentation by the parties concerning their proposed agreement, indicating that under the facts presented their agreed sentence would be acceptable to the court, and the court, on its own, proposing a sentence on the condition that the defendant plead guilty. There is also a distinction, but somewhat less material, between the judge's approval of the parties' agreement and a situation in which the judge, at the request of the parties, actively participates in determining which sentence will be imposed if the defendant pleads. The first sentence of this paragraph reflects the original position of the American Bar Association Standards for Criminal Justice; the second sentence reflects the current standard.
In such case the judge is asked to approve a sentence that the prosecutor, on behalf of the state and after consultation with the victim ( see section 960.001 (1)(g), Florida statutes), urges is appropriate under the circumstances and one which the defendant believes is in his or her best interest. In agreeing to accept the plea agreement, the court is merely stating that based on its present view of the facts (and that view is unlikely to change if there is no trial) and further based on the representation of the defendant's record (to be confirmed by a PSI), the court finds the proposed sentence acceptable. Hence, the court's role as a neutral arbiter is not jeopardized.
I am not convinced that even the agreement of the parties to accept the court's proposal of a lesser sentence if the defendant waives his right to trial will pass constitutional muster. If the defendant elects not to accept the court's offer and is convicted at trial and if the court does not impose the previously offered sentence, is there not at least the appearance that defendant is being punished for electing to go to trial? Certainly if the defendant and the state accept the court's offer, and if the court carries through with it, then the parties are estopped to raise the issue on appeal. Thus the issue will surface only if the defendant rejects the court's offer or is subsequently permitted to withdraw the plea.
I recognize the justification sometimes given that because of the additional matters learned at trial, the initially proposed sentence is no longer appropriate. This is a convincing argument if the court has merely approved the recommendation of the parties based on a proffered fact presentation. It is less convincing if the court has itself participated in determining what sentence would be appropriate under the facts of the case. By claiming that matters revealed at trial have changed the appropriate sentence, it is apparent that the judge was not sufficiently informed at the time he or she proposed the sentence to make a reasonable sentence proposal. In order to avoid the appearance that the new sentence is punitive, the court should indicate at sentencing how the facts revealed at trial differ from its pretrial perception which led to its initial offer.
Whether in its negotiations the court agrees to downward depart or merely to give a lesser guideline sentence should be immaterial. For example, would a trial court satisfy the concerns of Del Percio by informing a defendant that he would get the bottom of the guidelines if he pleads guilty but the top of the guidelines if he goes to trial and is convicted?
Florida's Rules of Criminal Procedure have not yet adopted the current position of the American Bar Association which specifically permits limited judicial participation in plea negotiations. Perhaps there is a reason. It should not matter whether the court uses a stick or a carrot to induce a plea. It is no better constitutionally to offer a reward than it is to threaten punishment in order to get a waiver of defendant's constitutional rights. If one refuses the court's offer and goes to trial and receives a sentence greater than the offer, he has been disadvantaged by exercising his constitutional right not to accept the court's offer and insisting on a trial even though the negotiating procedure is approved by the American Bar Association.
Florida should limit the judge's role in plea negotiation to approving, even pre-approving, the agreements entered into by the parties. In that way, it cannot be said that the court has committed to treat differently those who plead guilty from those who stand trial.
DAUKSCH, J., concurs.