OSCAR FLORES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Oscar Flores appeals the denial of his motion to vacate his sentence as illegal, arguing that the sole count on which he was sentenced had been nolle prossed before sentencing. The court affirmed, holding that because jeopardy had attached when the judge accepted Flores' plea, the State lacked authority to nolle pros that count, making the purported nolle pros a nullity and the sentence legally valid.
The sentence was legally imposed and properly denied vacation. Although the general rule provides that actions subsequent to a nolle prosequi are nullities, the State has no authority to nolle pros a charge after jeopardy has attached, including after a judge accepts a plea. Because the judge had accepted Flores' plea to count 2, the State lacked authority to nolle pros that count, making the purported nolle pros itself a nullity and leaving the sentence on count 2 legally valid.
[1] A nolle prosequi filed after a judge accepts a defendant's plea to a charge is a nullity.
[2] A court may clarify a clerical error in a nolle prosequi to reflect the parties' original intent.
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“the State has no power to nolle pros a charge after jeopardy has attached”
Establishes the critical limitation on the State's authority to nolle pros, which is the basis for the court's holding
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Join FLexlaw to unlock all legal intelligenceFlores was charged with four counts of lewd or lascivious offenses involving a thirteen-year-old niece. Pursuant to a plea agreement, Flores pled to c…
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LAWSON, J.
Oscar Flores appeals from an order which granted his “motion for clarification,” but denied the relief which Flores sought. Flores requested an order vacating his sentence as illegal, arguing that the sole charge on which he was sentenced had been nolle prossed before his sentencing. Citing to the general rule that any action taken subsequent to the filing of the nolle prosequi is a nullity, Flores claims that he was sentenced illegally. We disagree, and affirm.
On February 6, 2003, Flores was charged in a four-count information with lewd or lascivious battery (count 1); lewd or lascivious molestation (count 2); lewd or lascivious exhibition (count 3); and lewd or lascivious conduct (count 4). All counts related to sexual activity between Flores, then a thirty-one year old male, and his thirteen year old niece.
Pursuant to a plea agreement with the State, Flores entered a plea to count 2. The agreement provided that the State would nolle pros all remaining counts, and that Flores would be sentenced to fifty-one months in prison, followed by five years of sex offender probation. The judge conducted a thorough plea colloquy, accepted Flores’ plea, and set sentencing for three days later so that the victim could be present. At sentencing, the State filed its nolle pros form before the judge imposed the agreed sentence. The form, however, erroneously purported to nolle pros counts 2, 3 and 4, instead of counts 1, 3 and 4. Apparently, no one noticed the error, and the judge simply imposed the agreed sentence on count 2, the charge to which Flores had pled three days earlier. In response to Flores’ motion below, the trial judge entered an order simply clarifying that the nolle pros was intended to apply to count 1, not count 2, and that Flores was properly sentenced on count 2.
Flores is correct in his recitation of the “general rule” that “any action taken subsequent to the filing of the nolle prosequi is a nullity.” Sadler v. State, 949 So. 2d 303, 304 (Fla. 5th DCA 2007) (citations omitted).
However, the State has no power to nolle pros a charge after jeopardy has attached. E.g., State v. Sokol, 208 So. 2d 156 (Fla. 3d DCA 1968).
Therefore, the State has no authority to nolle pros a charge after a jury is sworn, id., or after a judge accepts a plea to the charge. E.g., State v. R.J., 763 So. 2d 370 (Fla. 4th DCA 1998); Cabrera v. State, 415 So. 2d 898 (Fla. 3d DCA 1982). Because the judge had already accepted Flores’ plea to the charge in count 2, the State had no authority to nolle pros count 2 prior to sentencing.
Therefore, the purported nolle pros of count 2 was itself a nullity, and the sentence entered on count 2 was legally imposed.
The trial court properly denied Flores’ request to vacate his sentence as illegal and properly clarified that the nolle pros should have applied to count 1.
AFFIRMED.
THOMPSON and PALMER, JJ., concur.
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Sameer Muhammad v. State, 99 So. 3d 964 (Fla. 3d DCA 2011)…ed and sentenced the defendant on the organized fraud conviction. The State’s election to nolle pros the defendant’s organized fraud conviction after the jury returned a verdict is a nullity and shall have no effect upon remand. See Flores v. State, 958 So. 2d 1026, 1027 (Fla. 5th DCA 2007) (“The State has no power to nolle pros a charge after jeopardy has attached. Therefore, the State has no authority to nolle pros a charge after a jury is sworn.”). We find no merit on any of the other issues raised in thi…
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Manata v. State, 226 So. 3d 1027 (Fla. 1st DCA 2017)…anized scheme to defraud conviction. The Staté’s nolle prosse of the appellant’s conviction for organized scheme to, dfefraud is a nullity, and shall have ho effect on remand. See Muhammad v. State, 99 So. 3d 964 (Fla. 3d DCA 2011); Flores v. State, 958 So. 2d 1026, 1027 (Fla. 5th DCA 2007) (“The State has no power to nolle pros a charge after jeopardy has attached. Therefore,' the State has no authority to nolle pros a charge after a jury is sworn.”). ROBERTS, MAKAR, and OSTERHAUS, JJ., CONCUR.…
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Authorities Cited
- State v. Sokol, 208 So. 2d 156 (Fla. 3d DCA 1968)
- State v. R.J., 763 So. 2d 370 (Fla. 4th DCA 1998)
- Fine v. Remax Advantage Plus, 949 So. 2d 303 (Fla. 4th DCA 2007)
- Sadler v. State, 949 So. 2d 303 (Fla. 5th DCA 2007)
- Epifanio Cabrera v. State, 415 So. 2d 898 (Fla. 3d DCA 1982)
- FAR W. Botanicals, Inc. v. Pieter Raams and Raams Botanicals, 415 So. 2d 898 (Fla. 3d DCA 1982)