THE STATE OF FLORIDA, APPELLANT,
v.
EDWARDO GORAYEB, APPELLEE
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Florida appealed the dismissal of a refiled information against Gorayeb for a crime that had been previously nolle prossed after he completed a pretrial intervention program. The court reversed and remanded to determine whether Gorayeb breached the program's condition prohibiting him from violating any laws during participation.
The court reversed the dismissal order and remanded for the trial court to determine whether Gorayeb breached the pretrial intervention agreement by violating any laws during the program. If a breach is found, the agreement becomes unenforceable and the case may proceed; if no breach is found, the dismissal order should be re-entered. As dictum, the court suggested that the "clear and convincing" standard of proof is more appropriate than the preponderance standard given the consequences of the determination.
[1] A pretrial intervention agreement is unenforceable if the defendant violates its terms, such as by committing a crime during the program.
[2] A defendant's alleged violation of a condition not to "violate any laws" during pretrial intervention requires factual determination before dismissal of a refiled charge.
Previewing 2 of 3 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“If the trial court determines that Gorayeb had indeed committed a crime while in the program, the terms of the agreement would be unenforceable and the instant case must be permitted to go forward.”
Establishes the key holding that breach of the pretrial intervention agreement by committing a crime renders the agreement unenforceable and allows prosecution to proceed.
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Join FLexlaw to unlock all legal intelligenceGorayeb was charged with a crime and entered a pretrial intervention program. He successfully completed the program, resulting in a nolle prosse of th…
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SCHWARTZ, Chief Judge.
This is a state appeal from an order dismissing a refiled information on the ground that the defendant had successfully completed the pretrial intervention program resulting in an earlier nolle prosse of the identical charge. We reverse for determination below of the issue of whether, as alleged by the prosecution, Gorayeb had breached that portion of the pretrial intervention agreement that he not “violate any laws” during the course of his participation in the program. Cf. Flaherty v. State, 367 So. 2d 1111 (Fla. 3d DCA 1979) (no breach of condition that defendant not be convicted of felony during stated period).
If the trial court determines1 that Goray-eb had indeed committed a crime while in the program, the terms of the agreement would be unenforceable and the instant case must be permitted to go forward. See United States v. Hicks, 693 F. 2d 32 (5th Cir.1982) (breach of plea bargain precludes enforceability by defendant), cert. denied, 459 U.S. 1220, 103 S.Ct. 1226, 75 L.Ed.2d 461 (1983); Hoffman v. State, 474 So. 2d 1178 (Fla.1985) (same); Brown v. State, 367 So. 2d 616 (Fla.1979) (same); Lerman v. Cornelius, 423 So. 2d 437 (Fla. 5th DCA 1982) (same). A contrary factual finding would of course result in the re-entry of an order of dismissal.
Reversed.
HENDRY, J., concurs.
. The parties have requested what amounts to an advisory opinion as to the burden of proof applicable to this proceeding. By way of pure dictum, we observe that while because only a breach of contract is technically involved, an argument might be made for the civil preponderance test, it seems more appropriate, because of the consequences of the decision, that the intermediate "clear and convincing” burden be applied. See Ferris v. Turlington, 510 So. 2d 292 (Fla.1987).
BASKIN, Judge
(concurring).
I concur in the result but write separately to stress the importance of the trial court’s consideration of applicable statutes of limitation in this type of proceeding.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007)…require the state to explain its decision to terminate PTI where a defendant states, under oath, that there has been no violation of PTI terms. However, we do not reach that issue, as it is not before us. We certify conflict with State v. Gorayeb, 510 So. 2d 1168 (Fla. 3d DCA 1987) (reversing for hearing to determine whether the defendant breached PTI). Therefore, the judgment and sentence are affirmed. SHAHOOD and HAZOURI, JJ., concur. . Other than this statement, the record is silent as to why Batista’s…
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State v. Fitzgerald, 640 So. 2d 214 (Fla. 2d DCA 1994)…less confronted by a short statute of limitations, it would seem that the state could achieve a similar result by nolle pressing the charges during the agreement and refiling if the defendant does not comply with the agreement. Cf. State v. Gorayeb, 510 So. 2d 1168 (Fla. 3d DCA 1987) (remanding trial court's dismissal of refiled information after defendant allegedly breached pretrial intervention agreement); State v. McClain, 509 So. 2d 1360 (Fla. 2d DCA 1987) (after plea agreement is set aside, state has opti…
Authorities Cited
- Brown v. State, 367 So. 2d 616 (Fla. 1979)
- Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987)
- Hoffman v. State, 474 So. 2d 1178 (Fla. 1985)
- United States v. Hicks, 693 F.2d 32 (5th Cir. 1982)
- McMillion v. Maryland, 459 U.S. 1220 (U.S. 1983)
- Colvin v. United States, 459 U.S. 1220 (U.S. 1983)
- Joyner v. State, 423 So. 2d 437 (Fla. 5th DCA 1982)
- Lerman v. The Honorable Lon S. Cornelius, 423 So. 2d 437 (Fla. 5th DCA 1982)
- Flaherty v. State, 367 So. 2d 1111 (Fla. 3d DCA 1979)