THE STATE OF FLORIDA, APPELLANT,
v.
RENE BORREGO, APPELLEE
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Florida appealed a trial court's dismissal of charges against a former police officer based on a 'no action agreement' requiring him to perform undercover work for the state. The appellate court reversed, holding that the state was not bound by the agreement because the defendant had not yet performed his obligations under it.
The court held that equitable immunity does not apply because Borrego failed to satisfy the three-part Rowe test: although an agreement was made, Borrego did not perform his obligations or assist with investigations, and he failed to show detrimental reliance or prejudice. The state was not bound by an executory agreement that had not been performed.
[1] A prosecution may be dismissed based upon a bad faith prosecution.
[2] An agreement not to prosecute will be judicially enforced only if the defendant performed their side of the agreement and the subsequent prosecution is directly related t…
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Join FLexlaw to unlock all legal intelligence“We believe that, as a matter of fair conduct, the government ought to be required to honor such an agreement when it appears from the record that: (1) an agreement was made; (2) the defendant has performed on his side; and (3) the subsequent prosecution is directly related to offenses in which the defendant, pursuant to the agreement, either assisted with the investigation or testified for the government”
The three-part Rowe test for enforcing non-prosecution agreements
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Join FLexlaw to unlock all legal intelligenceRene Borrego, a police officer with North Bay Village Police Department, was arrested on December 19, 1982, for dealing in stolen property based on re…
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JORGENSON, Judge.
This is an appeal by the state from an order of the trial court granting Rene Bor-rego’s motion to dismiss based upon a bad faith prosecution. We have jurisdiction. See Fla.R.App.P. 9.140(c)(1)(A). For the reasons which follow we reverse.
In its order of dismissal the trial court made extensive findings as follows:
1. The Defendant, RENE BORREGO, up until December 12, 1982, had been employed for nine and one-half years as a Police Officer with the North Bay Village Police Department.
2. On December 19, 1982, at about 11:00 A.M., officers of the Metro-Dade Police Department arrested BORREGO at his house for dealing in stolen property, after he allegedly received stolen diamonds delivered by an informant employed by the Metro-Dade Department. 3. After his arrest, BORREGO, [sic] was driven to an office of the Metro-Dade Police Deaprtment [sic] building where he was questioned by Sgt. Collins about cooperating with the police.
4. BORREGO awaited the arrival of an attorney while the police awaited the arrival of Assistant State Attorney La-Vecchio.
5. Assistant State Attorney LaVec-chio arrived at the police office around 3:00 P.M., with BORREGO’s attorney, Joseph Corey, arriving about one-half hour later. 6. Chief Blair was called and he arrived during this time period. His being called was based on the fact that Borre-go was a police officer with the North Bay Village Police Department. After his arrival, Chief Blair made his position known that the defendant would no longer be employed by North Bay Village. Chief Blair’s position in this regard was unequivocal.
7. Present during various stages of discussions were Borrego, LaVecchio, Corey, Sgt. Collins and Sgt. Howett, of the Metro-Dade Police Department, Police Chief Blair and Detective Nevers from the North Bay Village Police Department, Daniel Borrego and another detective, both with the Metrp-Dade Police Department.
8. Sgt. Collins testified that he wanted Borrego to work in an undercover capacity in exchange for which the charges against him would be dropped.
9. Discussions took place concerning Borrego’s resignation or termination from the North Bay Village Police Department with Borrego wanting a resignation instead of being fired so that he would be in better standing should he desire to apply for a police position with another department.
10. The discussions between LaVec-chio, Collins, Corey and BORREGO, (through his attorney, Corey) continued for several hours. BORREGO decided to sign a letter of resignation from the North Bay Village Police Department.
11. After lengthy discussions between Corey, Collins, and BORREGO (through Corey), and LaVecchio, a document was drafted by LaVecchio which was entitled “No Action Agreement” which was signed by LaVecchio and a copy of the document was given to Corey. This document has been submitted as evidence in this case. This agreement provided in part that BORREGO was to perform certain acts for the Metro-Dade Police Department and the State Attorney’s office.
During this time, at Organized Crime Bureau, BORREGO made no statements in regard [sic] the charges against him and was asked nothing about his own case. ,
12. The meeting ended with BORRE-GO and his attorney agreeing to be in LaVecchio’s office at the State Attorney’s office the next afternoon. The meeting ended about 7:30 P.M.
13. After BORREGO’s “arrest” on December 19, 1982, he was not booked into jail, fingerprinted, photographed or otherwise processed. The reason according to the police was that if BORREGO was going to work undercover, they wanted to keep the fact of his arrest quiet.
14. Early the next morning, December 20, 1982, Assistant State Attorney LaVecchio went in to tell Chief Investigator Ray Havens and State Attorney Janet Reno what had transpired the previous day.
15. When LaVecchio told the State Attorney that the police wanted BORRE-GO to cooperate and that the charges would be dropped, she rejected the plan.
16. Attorney Corey and BORREGO arrived at the State Attorney’s office, as agreed, and were told by LaVecchio that the deal was off.
17. BORREGO, through his attorney, reiterated that he was willing to perform in accordance with the agreement.
18. LaVecchio said the word was out that BORREGO had been arrested and he would be of no use in an undercover capacity.
19. BORREGO was taken to the Dade County Jail and booked, in the normal fashion, and an Information charging him with dealing in stolen property was filed.
The trial court concluded that the state was bound, under the doctrine of equitable immunity, see Rowe v. Griffin, 676 F. 2d 524 (11th Cir.1982), by its promise not to prosecute. The court in Rowe established a three-part test which must be met before an agreement not to prosecute will be judicially enforced:
We believe that, as a matter of fair conduct, the government ought to be required to honor such an agreement when it appears from the record that: (1) an agreement was made; (2) the defendant has performed on his side; and (3) the subsequent prosecution is directly related to offenses in which the defendant, pursuant to the agreement, either assisted with the investigation or testified for the government,
id. at 527-28. The only element of the Rowe test that has been met in this case was the making of an agreement. Borre-go, although willing to perform, did not perform, nor did he assist with the investigation or testify. Borrego has not shown that he detrimentally relied upon the state’s promise not to prosecute nor has he shown any prejudice. Both of these criteria are necessary before such an agreement will be enforced. See Rowe; cf. Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975) (specific performance of plea bargain not available to the defendant absent clear showing of irrevocable prejudice). Equitable immunity, if it exists in Florida, is not present in this case.
Borrego’s reliance on State v. Davis, 188 So. 2d 24 (Fla. 2d DCA), cert. denied mem., 194 So. 2d 621 (Fla.1966), is misplaced. In that case the defendant had performed his part of the agreement. The court held, therefore, that the state was bound by its promise. In the present case the agreement was still executory; there was no performance prior to its repudiation by the state. Borrego’s willingness to perform is not performance. While we might agree with the court below, based upon sound public policy, that the state should be bound by its promises, that is not the law. We cannot enforce such agreements while they are still in their executory stage.
Reversed and remanded for further proceedings.
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Kentrell F. Johnson v. State, 238 So. 3d 726 (Fla. 2018)…between Department of Business Regulation and accused); Simpson v. State , 467 So. 2d 437, 439 (Fla. 5th DCA 1985) (finding prior agreement in same jurisdiction unenforceable absent showing of irrevocable prejudice to defendant); State v. Borrego , 445 So. 2d 666, 667 (Fla. 3d DCA 1984) (finding agreement with law enforcement not to prosecute if accused participated in criminal investigation unenforceable against state attorney); Stancel v. Schultz , 226 So. 2d 456, 459 (Fla. 2d DCA 1969) (finding immunity a…
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Simpson v. State, 467 So. 2d 437 (Fla. 5th DCA 1985)…e court of a plea agreement with the state, absent a showing of irrevocable prejudice to the defendant resulting from the plea agreement. See Rowe v. Griffin, 676 F. 2d 524 (11th Cir.1982); Davis v. State, 308 So. 2d 27 (Fla.1975); State v. Borrego, 445 So. 2d 666 (Fla. 3d DCA 1984); Ivey v. Eastmoore, 402 So. 2d 1248 (Fla. 5th DCA 1981), review denied, 408 So. 2d 1093 (Fla.1981); Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975). Simpson’s year in jail did not result from the plea agreement, as asserted by hi…
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State v. Simons, 22 So. 3d 734 (Fla. 1st DCA 2009)…greement or allow the defendant to withdraw the plea. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Tillman v. State, 522 So. 2d 14 (Fla.1988); Spencer v. State, 623 So. 2d 1211 (Fla. 4th DCA 1993); State v. Borrego, 445 So. 2d 666 (Fla. 3d DCA 1984); Barker v. State, 259 So. 2d 200 (Fla. 2d DCA 1972). As the Supreme Court explained in Santobello, the appropriate remedy in a given case is within the discretion of the trial judge. In some situations it may be proper to allow t…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rowe v. Griffin, 676 F.2d 524 (11th Cir. 1982)
- Smith v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)
- Odom v. State, 310 So. 2d 770 (Fla. 2d DCA 1975)
- Nelson v. City of Miami, 194 So. 2d 621 (Fla. 1966)
- State v. Sampson Davis, 188 So. 2d 24 (Fla. 2d DCA 1966)