JOANN CROSSIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joann Crossin pleaded nolo contendere to drug delivery charges pursuant to a plea agreement in which the prosecution promised to recommend probation. When the prosecutor failed to make this recommendation at sentencing, the appellate court reversed and remanded, holding that the state's breach of the bargain rendered the plea involuntary and required the trial court to vacate the conviction and allow withdrawal of the plea.
The state was bound by its promise to either make the probation recommendation or advise the appellant before she withdrew her not guilty plea that it could not do so. When the state failed to keep its end of the bargain, the plea became involuntary, and the trial court erred in denying appellant's motion to vacate the judgment and permit withdrawal of the plea.
[1] A nolo contendere plea is involuntary when the state fails to uphold its end of a negotiated plea agreement.
[2] A trial court must vacate a judgment and sentence and permit a defendant to withdraw a nolo contendere plea when the state breaches the plea agreement.
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Join FLexlaw to unlock all legal intelligence“When the state failed to recommend to the court that the appellant be placed on probation, it violated the bargain made in exchange for appellant's plea of nolo contendere. We cannot permit the state to gain an advantage in this manner.”
Establishes the court's core holding that the state is bound by its plea bargain promises and cannot breach them without consequence
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with delivery of a hallucinogenic drug. Through plea negotiations, she agreed to withdraw her not guilty plea and enter a plea o…
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Appellant was charged with delivery of a certain hallucinogenic drug to which she pled not guilty. Subsequently, as a result of plea negotiations between her attorney and the prosecutor, appellant appeared in court and withdrew her plea of not guilty, entering a plea of nolo contendere. The court accepted the plea, adjudged appellant guilty and following pre-sentence investigation sentenced her to two years in prison.
Immediately upon being sentenced, appellant filed a motion to vacate the judgment and sentence and to withdraw the plea of nolo contendere and enter a plea of not guilty. The court’s denial of that motion is the only point argued on this appeal.
*251The record affirmatively discloses that at the time of the change of plea and again approximately one week later at the time of sentencing, appellant’s counsel expressly advised the court that the plea of nolo con-tendere was a negotiated plea in exchange for which the prosecutor had agreed to recommend to the court that appellant be placed on probation. Although the record reflects that the trial judge made it quite clear to appellant and her counsel that the court would, not be, bound by such a recommendation, the transcript of the proceedings held before the court at the time of sentencing also shows that (1) the court asked the prosecutor if the state had any recommendation, (2) the prosecutor declined to make any recommendation of probation and stated that he would defer to the results of the pre-sentence investigation report, and (3) the court stated that it had been unable to find anywhere in the pre-sentence investigation report any recommendation by anyone whomsoever in regard to probation.
When the state failed to recommend to the court that the appellant be placed on probation, it violated the bargain made in exchange for appellant’s plea of nolo contendere. We cannot permit the state to gain an advantage in this manner. Cf. Butler v. State, Fla.App.1969, 228 So.2d 421, 36 A.L.R.3d 1274; State v. Davis, Fla.App.1966, 188 So.2d 24. Although the court was not bound by these negotiations, the state was bound either to make the recommendation as it had promised, or to advise appellant, prior to the withdrawal of her not guilty plea, that it could not do so. Ward v. State, 1945, 156 Fla. 185, 22 So.2d 887. The state having failed to keep its end of the bargain, the plea became in essence an involuntary one. When these facts were made known to the court by the subsequent motion and hearing thereon, the court should have vacated the judgment and sentence and permitted appellant to withdraw the plea and re-enter her plea of not guilty. Ward v. State, supra; Banks v. State, Fla.App.1962, 136 So.2d 25.
The judgment and sentence are severally reversed and this cause remanded for further proceedings consistent herewith.
Reversed and remanded.
WALDEN and MAGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wood v. State, 357 So. 2d 1060 (Fla. 1st DCA 1978)…on to induce Wood’s plea of guilty, an inconsistent but ostensibly neutral position when the plea was in hand, and a hostile position through a covert communication to the court. The judgment and sentence will of course be vacated. Crossin v. State, 262 So. 2d 250 (Fla.4th DCA 1972). In these circumstances we need not pause to inquire whether lawyer Dougherty’s momentary lapse, in acquiescing in lawyer White’s conduct at sentencing without consulting her client, would in other circumstances have validated th…
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Enos v. State, 272 So. 2d 847 (Fla. 4th DCA 1973)…efendant’s guilty plea was made only because one of the defendant’s attorneys told him the judge would not impose the death sentence if he entered such a plea. See also, Kirlis v. State, Fla.App.1972, 262 So. 2d 713; Crossin v. State, Fla.App. 1972, 262 So. 2d 250; Brown v. State, Fla. 1971, 245 So. 2d 41. In my view, the majority opinion travels on a premise or inference which the record does not bear out. The fact that the sentence turns out to be different than what defendant may have anticipated should n…
Authorities Cited
- Artis Banks v. State, 136 So. 2d 25 (Fla. 1st DCA 1962)
- State v. Sampson Davis, 188 So. 2d 24 (Fla. 2d DCA 1966)
- Ward v. State, 156 Fla. 185 (Fla. 1945)
- State v. Neal, 228 So. 2d 421 (Fla. 2d DCA 1969)
- Butler v. State, 228 So. 2d 421 (Fla. 4th DCA 1969)