CINDY WASELESKI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cindy Waseleski pleaded guilty to trafficking in cocaine after negotiations she understood included an agreement that police would give her the opportunity to provide substantial assistance and earn prosecutorial leniency. After police failed to follow through on drug buys she had set up, the trial court denied her motion to withdraw her plea. The appellate court reversed, finding unrebutted evidence of the agreement and police breach constituted good cause for plea withdrawal.
The court held that Waseleski showed good cause to withdraw her plea under Rule 3.170(f), Florida Rules of Criminal Procedure. The unrebutted evidence of the agreement and police breach constituted good cause, and the trial judge erred by denying the motion to withdraw.
[1] A plea of guilty may be withdrawn upon good cause shown at any time before sentencing.
[2] A defendant may establish good cause to withdraw a guilty plea by demonstrating a breach of a plea agreement by the State.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“we do not believe this argument by the State's counsel was enough to overcome the appellant's evidence”
The court rejected the State's unsubstantiated assertion about Waseleski's lack of seriousness as insufficient to overcome her unrebutted testimony about the plea agreement.
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Join FLexlaw to unlock all legal intelligenceWaseleski entered a guilty plea to trafficking in cocaine pursuant to a plea agreement under which the State nol prossed two counts of delivery of can…
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PER CURIAM.
Pursuant to a plea agreement, appellant entered a plea of guilty to trafficking in cocaine, and the State nol prossed two counts of delivery of cannabis. At sentencing, appellant moved to withdraw her plea, contending that the plea negotiations included an agreement that the police would give her the opportunity to provide “substantial assistance” and earn the prosecutor’s recommendation of leniency. See § 893.135(3), Fla.Stat. (1981). The trial judge denied the motion and sentenced appellant to fifteen years in prison, the mandatory minimum. § 893.135(l)(b)3.
We recognize that providing substantial assistance does not mandate a reduced sentence. Rather, the statute permits this result if the prosecutor, in his discretion, recommends leniency and the judge, in his discretion, accepts the recommendation. However, appellant does not challenge the propriety of the sentence. Instead, she contends that she based her decision to plead guilty at least in part on the representation that the State would permit her to qualify for the prosecutor’s recommendation of leniency. She argues, subsequent dilatory conduct on the part of the police prevented her from fulfilling her part of the bargain, thus rendering her plea involuntary.
Appellant testified that a police officer told her that people who cooperated with him always got probation, and that this formed part of the plea agreement. She also testified that she set up drug buys on two different occasions, and that the officers, although each agreed to participate in a specific buy, simply failed to attend. The State argued against appellant’s position, but presented no evidence to rebut her assertions. For example, in its brief on appeal the State notes:
Here, the assistant state attorney never contested that there was an understanding with Appellant, but vigorously insisted that Appellant had never been serious about offering assistance to the police and for that reason he could not make any recommendation for the mitigation of her sentence.
We do not believe this argument by the State’s counsel was enough to overcome the appellant’s evidence.
Rule 3.170(f), Florida Rules of Criminal Procedure provides:
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 ....
The unrebutted evidence showed the existence of this agreement, and breach of the agreement by the police. Appellant showed good cause to withdraw her plea, and the trial judge erred by denying her motion.
REVERSED and REMANDED.
ANSTEAD, DELL and WALDEN, JJ., concur.
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Noon v. State, 480 So. 2d 668 (Fla. 4th DCA 1985)…in its discretion, and shall upon good cause, at any time before a sentence, permit a guilty plea to be withdrawn. We believe good cause was shown here requiring the trial court to allow withdrawal of the plea. As in the case of Waseleski v. State, 429 So. 2d 77 (Fla. 4th DCA 1983), there was some evidence that the state’s conduct was dilatory and helped to prevent Noon from fulfilling his part of the bargain. Furthermore, Noon was requested to become an informant with regard to crimes as yet undetected and…
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State v. Mansuel Lee Union, 469 So. 2d 840 (Fla. 2d DCA 1985)…umptively prejudicial. However, Union has failed to show that he has suffered actual prejudice because of the delay. See Barber v. State, 438 So. 2d 976, 978 (Fla. 3d DCA 1983), petition for review denied, 447 So. 2d 885 (Fla.1984); State v. Ochran, 429 So. 2d 77 [*842] (Fla. 4th DCA 1983). The unsworn motion to dismiss did not allege why actual prejudice resulted, and the trial judge did not make a specific finding of actual prejudice. Speculative allegations as to failed memories do not prove actual preju…
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