Doherty v. State, 83-2523
| Decision Date | 18 April 1984 |
| Docket Number | No. 83-2523,83-2523 |
| Citation | 448 So.2d 624 |
| Parties | Thomas J. DOHERTY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Thomas J. Doherty in pro per.
No appearance required for appellee.
Appellant, Thomas J. Doherty, was charged with aggravated battery and violation of probation. The appellant and the state negotiated a plea that included as a part thereof that appellant would pay $800 to the victim of the aggravated battery within one week.
On March 31, 1982, the negotiated plea was presented to the trial judge by appellant's counsel in the context that it was appellant's desire to make restitution to the victim.
The plea bargain presented to the court was that appellant would plead guilty to a violation of his probation and guilty to the substantive offense of aggravated battery, and be adjudged on the substantive offense. The appellant would make restitution of $800 to the victim "up front" prior to sentencing. He was to be released from jail on his own recognizance so as to make the restitution within one week. If he successfully made restitution within the week, he was to be sentenced to one year in the county jail for the probation violation and one year for the substantive crime to run concurrently. If appellant failed to meet the restitution provision of the agreement, he waived any right to vacate the plea and the court would be free to sentence him to the maximum penalties allowed by law.
During the long colloquy among the judge, counsel, and appellant the judge expressed skepticism about appellant's ability and reliability to perform. However, after a most meticulous discussion of the appellant's rights, the punishment that would result if appellant failed to show up one week later with the money, and all of the ramifications of the bargain, the trial judge accepted the proposal. During the hearing appellant acknowledged that whether he was able to raise the money or not would be irrelevant. He said he was aware that, if he did not pay by April 7, 1983, he was to be sentenced for the aggravated battery. The court gave appellant an additional four weeks to comply with the agreement. When he still had not complied, the court imposed a sentence on the aggravated battery charge.
Predictably, the appellant now contends the state violated the agreement and the agreement was unlawful in any event.
The jurisprudence of this state is filled with cases requiring the state to comply with plea bargains. We see no reason why a defendant should not be required to comply also, assuming the agreement is not illegal. Here, appellant asked the court to withhold sentencing him for the aggravated battery if he made restitution to the victim. To ignore the reciprocity of such an agreement would have a deleterious affect upon any plea bargain in which restitution is an ingredient. The defendant could enter into such an agreement knowing he could not perform but then preclude subsequent action by the state by showing he did not have the ability to perform.
The law is well settled that probation cannot be revoked for violation of a condition thereof requiring restitution if the probationer is financially unable to comply. All of the cases relied on for reversal in this case are decisions involving the violation of a condition of probation requiring payment of costs, restitution, and the like. It appears to us the same rule is inapposite here. This was not a court imposed condition; it was agreed upon by the appellant, who requested the court to accept it.
For these reasons we hold the order appealed from should be and is affirmed.
AFFIRMED.
In substance, Thomas J. Doherty pled guilty to aggravated battery and violation of probation through aggravated battery as a part...
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Hamrick v. State
...of error by the state.3 The only authority cited by Brushingham is the Fourth District's own earlier case of Doherty v. State, 448 So.2d 624 (Fla. 4th DCA 1984), pet. for review denied, 458 So.2d 272 (Fla.1984). We do not think Doherty supports that proposition. The majority opinion in Dohe......
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Dirico v. State
...Florida Supreme Court opinion in Stephens v. State, 630 So.2d 1090 (Fla.1994). The issue was first addressed in Doherty v. State, 448 So.2d 624 (Fla. 4th DCA 1984). In that case, Doherty was charged with aggravated battery and violation of probation. Doherty and the State negotiated a plea ......
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Stephens v. State
...and the prohibition of imprisonment for debt." 519 So.2d at 82. Hamrick noted that Brushingham was based solely on Doherty v. State, 448 So.2d 624 (Fla. 4th DCA), review denied, 458 So.2d 272 (Fla.1984), but that Doherty specifically confined its holding to the facts of that case, i.e., Doh......
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Thomas v. State
...Gen., Charlie McCoy, Asst. Public Defender, Dept. of Legal Affairs, Tallahassee, for appellee. ERVIN, Judge. AFFIRMED. Doherty v. State, 448 So.2d 624 (Fla. 4th DCA), review denied, 458 So.2d 272 (Fla.1984). Cf. Stephens v. State, 630 So.2d 1090 (Fla.1994); Hamrick v. State, 519 So.2d 81 (F......