JAMES KEATON, PETITIONER,
v.
HONORABLE F.E. STEINMEYER III, CIRCUIT JUDGE, RESPONDENT
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James Keaton sought a writ of prohibition to prevent prosecution on cocaine charges after his nolo contendere plea was withdrawn due to difficulties supervising his community control sentence in Georgia. The court denied prohibition because Keaton's counsel had agreed to the plea withdrawal at the hearing, precluding a double jeopardy claim.
The court denied the petition for prohibition, finding that because Keaton's counsel agreed to the withdrawal of the plea at the August 31, 1989 hearing, Keaton cannot assert a double jeopardy claim. The court expressly declined to address whether the outcome would differ had counsel not agreed to the withdrawal.
[1] A defendant's agreement to withdraw a plea agreement, even if made orally by counsel, can waive a subsequent double jeopardy claim.
[2] A defendant may not assert a double jeopardy claim when the court withdraws a plea agreement based on the defendant's counsel's agreement to such withdrawal.
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Join FLexlaw to unlock all legal intelligence“at the hearing of August 31, 1989, defense counsel clearly agreed to the state's suggestion that the plea be withdrawn”
The factual basis for denying Keaton's double jeopardy claim—his own counsel's agreement to the remedy proposed by the state
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Join FLexlaw to unlock all legal intelligenceIn 1989, Keaton pled nolo contendere to possession of cocaine charges with adjudication withheld, receiving 2 days incarceration and 2 years probation…
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PER CURIAM.
James Keaton has petitioned this court for the extraordinary writ of prohibition, contending that the state may not continue to prosecute him on charges of possession of cocaine because to do so would be violative of his constitutional protection against double jeopardy. He shows he entered into a plea agreement in 1989 whereby he pled nolo contendere to the charges and adjudication of guilt was withheld. He was sentenced to 2 days of incarceration and 2 years of probation, the first 90 days of which were to be served as community control. Subsequently it was learned Keaton was living in Albany, Georgia, and Florida authorities would be unable to adequately supervise the community control portion of the sentence. Keaton moved the trial court to amend his sentence to delete the community control. The state’s position at the hearing on the motion was that the proper remedy for the problem was withdrawal of the plea and new plea negotiations or a trial. Defense counsel orally agreed to this disposition but subsequently revised his position and moved for dismissal on grounds of lack of jurisdiction and double jeopardy. When that motion was denied, Keaton sought relief from this court.
Having considered the petition and the response, we deny prohibition. We find that at the hearing of August 31, 1989, defense counsel clearly agreed to the state’s suggestion that the plea be withdrawn. Under the circumstances, petitioner cannot assert his double jeopardy claim. We do not reach the question whether the result would be different had not defense counsel agreed to withdrawal of the plea.
PETITION DENIED.
ERVIN, WENTWORTH and BARFIELD, JJ., concur.
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Morales v. State, 669 So. 2d 348 (Fla. 3d DCA 1996)…cases cited, approving, 610 So. 2d 726, 728 (Fla. 3d DCA 1992), and cases cited; White v. State, 644 So. 2d 174 (Fla. 3d DCA 1994); Bryant v. State, 644 So. 2d 513 (Fla. 5th DCA 1994), review denied, 654 So. 2d 130 (Fla.1995); Keaton v. Steinmeyer, 568 So. 2d 60 (Fla. 1st DCA 1990); Madrigal v. State, 545 So. 2d 392 (Fla. 3d DCA 1989); Whitchard v. State, 459 So. 2d 439 (Fla. 3d DCA 1984); Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984).…