Johnson v. State, 83-51

• Decision Date: 13 December 1984
• Docket Number: No. 83-51,83-51
• Citation: 460 So.2d 954
• Parties: William D. JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 954

460 So.2d 954

William D. JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 83-51.

District Court of Appeal of Florida Fifth District.

Dec. 13, 1984.

Robert S. Hobbs of Harry M. Hobbs, P.A., Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

This case involves questions as to whether jeopardy attaches when a nolo contendere plea is unqualifiedly, unconditionally accepted by the trial court; whether the acceptance of a plea was based on a material misrepresentation made to the court by the defendant; and whether a violation of a defendant's double jeopardy constitutional rights constitutes fundamental error.

This case is considered en banc because we recede from certain of our previous decisions.

Defendant, charged with a felony and three related misdemeanors, negotiated a plea agreement pursuant to which defendant entered a plea of nolo contendere to three misdemeanors (one being a lesser offense of the felony charged) and the State agreed to not prosecute the fourth misdemeanor. As part of the plea taking dialogue defendant answered negatively the following question asked by the trial court:

Have you withheld any information from him [appellant's trial defense counsel] or not told him anything that you ought to tell him but, for whatever reason, just haven't told him?

The trial judge accepted the pleas as freely and voluntarily entered, adjudicated defendant guilty on the nolo pleas, ordered a presentence investigation and deferred sentencing. Learning from the pre-sentence report that defendant had a prior felony conviction and an undesirable military discharge, on his own initiative the trial court vacated and set aside the nolo pleas and adjudications of guilt and set the case for trial at which defendant was convicted on all four original charges and sentenced to prison on the felony charge. This appeal is from the denial of a 3.850 motion claiming violation of constitutional double jeopardy rights.

The State does not contend that jeopardy did not attach upon acceptance of the pleas but contends that by withholding from his own lawyer information as to his prior felony conviction and dishonorable military discharge and by answering the above question from the trial judge, defendant was guilty of a misrepresentation constituting good cause to set aside the accepted nolo contendere pleas, citing Brown v. State, 367 So.2d 616 (Fla.1979), and Lerman v. Cornelius, 423 So.2d 437 (Fla. 5th DCA 1982).

In Brown the State agreed to accept a guilty plea to an offense less than that charged in exchange for Brown's agreement to testify against a co-perpetrator. After Brown's guilty plea to the lesser charge was accepted Brown refused to keep his promise to testify. The supreme court held that although the guilty plea had been accepted double jeopardy did not bar a prosecution on the original charge because Brown's guilty plea was accepted on condition that Brown later testify and when Brown refused to perform the condition subsequent the trial court had authority to vacate the conditional plea and the State could prosecute the original charge. In this case, however, defendant's nolo plea was not entered subject to his performance of any condition subsequent which he failed to perform.

In Lerman a negotiated nolo contendere plea was accepted and in ordering a presentence investigation the trial court, in effect, placed a condition on the acceptance of the plea by telling Lerman that he would have to stay out of trouble if he expected the court to honor the terms of the plea agreement relating to withholding adjudication, placing Lerman on probation and limiting any jail time imposed as a condition of probation. At sentencing the trial court placed Lerman on probation unaware that after the plea was accepted Lerman had been charged with the commission of another crime. This court cited Brown and held that Lerman had violated a condition imposed by the court on the acceptance of a negotiated plea which justified the trial court vacating the plea and sentence because Lerman's failure to advise the court at sentencing of the intervening criminal charge amounted to a misrepresentation to the court as to his compliance with the court's condition that qualified the acceptance of his plea. However, in this case, there was no qualification to the judicial acceptance of defendant's pleas.

If the State desires to condition its plea agreement, or the trial judge desires to condition the acceptance of a negotiated plea, on the truth of representations or the keeping of promises made by or on behalf of a defendant, this can be done. But the representations or promises made by the defendant and the fact that the plea is conditioned on the truth of the representations or performance of the promises, should be made clear and specific. Neglect, oversight or omissions as to these matters by the prosecutor or the trial judge cannot, and should not, be viewed as being the result of some failure of the defendant to meet some claimed duty to fully inform his own counsel as to his criminal and military history or to be the result of some failure of defense counsel to volunteer unrequested information that might adversely affect the interest of his client. In negotiating a plea agreement with the State and in presenting a negotiated plea to the trial court for acceptance a defendant and his counsel have a duty to answer truthfully all relevant inquiries made but ours is an adversary system and neither defendant nor his counsel have any duty to volunteer unsought information unfavorable to the defendant. There was no legal cause to set aside defendant's unconditional, unqualified nolo contendere pleas in this case because of any misrepresentation to the trial court by the defendant or his counsel.

After an unconditional nolo contendere plea to a lesser offense than charged is unqualifiedly accepted by the trial court, jeopardy attaches ¹ preventing the plea from being set aside and the original charges from being reinstated in the absence of a motion by the defendant to set aside the accepted plea and the absence of a knowing, intelligent and intentional consent or waiver, or an affirmative material misrepresentation of fact made to the court by the defendant.

The State also argues that defendant waived his double jeopardy rights by not filing a motion to dismiss the reinstated charges under Florida Rule of Criminal Procedure 3.190(c) or otherwise objecting to the trial court's action until the filing of his 3.850 motion for post-conviction relief. These are, in effect, assertions of the contemporaneous objection rule and the harmless error statutes.

A violation of defendant's substantive constitutional double jeopardy rights constitutes fundamental error. Such a fundamental error is per se harmful and judicially correctable without a showing of prejudice. Such a fundamental error is not subject to the harmless error statutes ² or to the contemporaneous objection rules and waivers implied from the failure of defense counsel to present the issue by a pre-trial motion to dismiss (as permitted by Fla.R.Crim.P. 3.190(c)) or failure of counsel to object or to otherwise present the issue at trial ³ and the fundamental error may be presented for the first time on appeal or collaterally attacked in post-conviction proceedings such as by motion under Rule 3.850. ⁴ The silence or inaction resulting from the failure of counsel to timely and effectively assert constitutional double jeopardy rights, or to object to a violation of those rights, does not constitute a valid implied waiver of those rights or of their violation.

This court has previously held that the violation of a defendant's constitutional double jeopardy rights does not constitute a fundamental error but is subject to the contemporaneous objection rule. See Garcia v. State, 444 So.2d 969 (Fla. 5th DCA 1983); Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981), review denied, 411 So.2d 381 (Fla.1981); Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980). These cases were based on the authority of cases decided in two other district courts of appeal. ⁵ However this court has also held to the contrary by treating the violation of double jeopardy rights as fundamental error and granting relief when the issue was first presented on direct appeal. See Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981); Muszynski v. State, 392 So.2d 63 (Fla. 5th DCA 1981). See also Vela v. State, 450 So.2d 305 (Fla. 5th DCA 1984). See also McGee v. State, 438 So.2d 127 (Fla. 1st DCA 1983) (dictum). The First District Court of Appeal, in Solomon v. State, 442 So.2d 1030 (Fla. 1st DCA 1983), expressly held a double jeopardy violation to be fundamental error. Apparently the Florida Supreme Court has not yet addressed this exceptionally important question.

Our decision in this case is not based on the precedential authority of, or argument in, the cases cited but on our appreciation of the value and fundamental nature of the basic constitutional right involved; our perception of the quality and magnitude of the legal error involved in its violation and of our belief that an adequate legal remedy must be provided for a violation of that right. Rule 3.850 specifically provides a remedy for a prisoner "claiming the right to be released upon the ground that the judgment was entered, or that the sentence was imposed, in violation of the Constitution or Laws of the United States or of the State of Florida ...."

Because of the complexity of the substantive constitutional double jeopardy right, and of its violation, a defendant charged with a criminal offense must necessarily rely on the legal professionals involved in the criminal justice system to see that right is not violated. The defense counsel, the prosecutor, and the trial judge each have a sworn duty to uphold the constitution and to provide the...