Metellus v. State

• Decision Date: 31 May 2002
• Docket Number: No. 5D01-1249, No. 5D01-1254., No. 5D01-1044, No. 5D01-1251, No. 5D01-1250, No. 5D01-1253
• Citation: 817 So.2d 1009
• Parties: Wilfrid METELLUS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

817 So.2d 1009

Wilfrid METELLUS, Appellant, v. STATE of Florida, Appellee.

Nos. 5D01-1044, 5D01-1249, 5D01-1250, 5D01-1251, 5D01-1253, 5D01-1254.

District Court of Appeal of Florida, Fifth District.

May 31, 2002.

James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

Wilfrid Metellus appeals from the sentencing orders imposed on re-sentencing. Metellus was re-sentenced pursuant to the trial court's determination that he had failed to testify against one of his criminal associates as agreed to in the plea agreement Metellus entered into with the State.

In this appeal of six consolidated cases, Metellus argues that (1) the trial court erred in vacating his original sentence and re-sentencing him to a longer sentence in violation of his constitutional protection against double jeopardy, and (2) the trial court erred in re-sentencing him after more than 60 days had lapsed since the alleged violation of his plea agreement. After discussing the factual and procedural background of the instant case, we will address each issue in the order previously presented.

Factual And Procedural Background

Metellus, shortly after committing numerous offenses in October 1998, went on another crime spree, this time with two associates, Jonel Ocer and Tony Elozar. For the sake of brevity and to avoid repetition, we will not chronicle every count in the six informations filed against Metellus. Suffice it to say that his criminal activities literally span the horizon of the Florida Criminal Code and include charges of carrying concealed firearms, possession of drugs, home invasions, robberies, kidnappings with intent to commit felonies with a firearm, aggravated assaults with firearms, and burglaries of dwellings with an occasional assault or battery with a firearm.

Metellus entered into a plea agreement that required him to plead guilty to the first count of each of the six informations. In return, the court would sentence him for each offense concurrently and the prison portion of the sentence would be capped at 30 years. Defense counsel informed the court at the plea proceedings that Metellus "will be required to testify truthfully against any co-defendants who proceed to trial." The prosecutor specifically questioned Metellus at the plea hearing whether Ocer and Elozar were involved with him in the commission of certain crimes, and Metellus admitted their involvement.¹ The trial court accepted Metellus's plea.

Another plea hearing was subsequently held at which time the prosecutor asked whether everything Metellus had said previously about the crimes was "still true" and whether everything Metellus had told the detectives about the crimes was true. Metellus answered affirmatively and agreed that Elozar and Ocer were the same two people who committed the offenses with him. Metellus again promised to testify truthfully and confirmed his understanding of whom he would testify against when he stated, "Um, my deal was that you was gonna make me testify on Tony Elozar." The trial court again accepted Metellus's plea and sentenced him to four sentences of fourteen years DOC and to two sentences of five years DOC. All sentences were to run concurrently.

The prosecutor, having established Metellus's testimony on the record at the plea hearings and secured his commitment to testify truthfully, proceeded with the prosecution of Elozar. Shortly after the ill-fated trial commenced, a harbinger of the misfortune that would soon befall the prosecutor presented itself when Metellus told her that "I know you need me. I want 4 instead of 14." The prosecutor informed Metellus that no further negotiation would take place and that he was about to be called as a witness and sworn to tell the truth. When Metellus was presented to the jury, his initial reluctance to testify was quelled by instruction from the court to answer the prosecutor's questions. Much to the chagrin of the prosecutor, Metellus presented testimony that was contrary to the statements he made when making the plea agreement. Specifically, Metellus testified that Elozar had nothing to do with the offense for which he was being tried. When confronted with his prior statements, Metellus replied that they were "a bunch of lies." Unable to prove her case despite all of her past efforts to properly secure truthful testimony from Metellus, the luckless prosecutor dismissed the charge against Elozar and watched him go free.

After Metellus reneged on his plea agreement, the State moved to have Metellus's sentence vacated. The motion to vacate was filed more than 60 days after Metellus breached the plea agreement. At the hearing on the motion, defense counsel agreed that Metellus "had not lived up to one of the important parts of the agreement, which was to testify against Mr. Elozar." Metellus informed the court, however, that while waiting to testify during the trial, he had been placed in the same holding cell occupied by Elozar. Reunited once again, Elozar, who apparently was not particularly enamored with Metellus at that time, expressed his displeasure with Metellus's agreement to testify against him by threatening Metellus and his family. The prosecutor, on the other hand, informed the court that upon learning of the brief reunion, she inquired of Metellus if he had experienced any trouble with Elozar and Metellus did not inform her of any problem. She argued that Metellus "has basically come up with a version that that's why he didn't testify truthfully." The prosecutor requested that the sentence be vacated and that the 30-year cap be imposed.

The trial court granted the motion to vacate the sentence and immediately resentenced Metellus to 29 years in place of the 14 year sentences on four counts and to the same 5 year terms on the remaining two counts.²

We turn now to the first issue presented —whether the trial court re-sentenced Metellus to a longer sentence in violation of the Double Jeopardy Clause.

Double Jeopardy

Metellus argues that the subsequent sentence he received violates the Double Jeopardy Clause of the federal and Florida constitutions. See U.S. Const. amend. V; Art. I, § 9, Fla. Const. The courts generally agree that "jeopardy attaches... on a conditional plea which is accepted on conditions favorable to the defendant," Brown v. State, 367 So.2d 616, 620-21 (Fla.1979) (footnote omitted), and that it is a violation of the double jeopardy prohibition to re-sentence a defendant to a longer term of imprisonment after sentence is imposed. Brown; Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Ruffin v. State, 589 So.2d 403 (Fla. 5th DCA 1991).

In McCoy v. State, 599 So.2d 645 (Fla.1992), the court established a procedure, which has been codified in rule 3.170(g), Florida Rules of Criminal Procedure, whereby the state may move to vacate a plea and sentence. Rule 3.170(g)(2)(C) provides that a plea or sentence may be vacated "if the court finds that there has been substantial noncompliance with the specific terms of the plea agreement."³ Metellus contends, however, that this rule does not apply. Specifically, he argues that pursuant to McCoy, the fact he did not testify as the State contemplated did not constitute noncompliance with the plea agreement because the written agreement only required him to testify "truthfully." It did not require him to testify that Elozar had committed the offenses.

In McCoy, the court held that where an agreement calls only for a defendant to testify truthfully without specifying the testimony the state expects to elicit, there is no basis to vacate the plea where the testimony at trial is not what the state expected. The court gave prosecutors guidance, however, on how to secure a plea agreement that may be vacated based on substantial non-compliance by a defendant:

[W]hen entering into a plea agreement, the State must make sure that the specific terms of the agreement are made a part of the plea agreement and the record. In this instance, it would have been adequate if it had been stated, as part of the plea agreement, that McCoy would testify truthfully in any criminal action against her supplier in accordance with identified statements that she had previously given to law enforcement officials.

Id. at 649.

While it is true that the written plea agreement only required Metellus to testify truthfully, Metellus's testimony was proffered at the plea hearings where it was established that "truthfully" meant as Metellus had stated in his account of the events to the police. This fact distinguishes Metellus's case from the facts of McCoy, wherein the defendant's plea agreement was only that she would testify truthfully and there was no clarification made during the plea colloquy of what the testimony would be. Moreover, the court in McCoy noted that "[n]one of the terms in the written plea agreement or statements made during the plea colloquy were violated by McCoy's failure to testify against her supplier." Id. (emphasis added). We conclude that a discussion or proffer of the expected testimony during the plea colloquy, as was done in the instant case, is sufficient and that the testimony need not be included in the written plea agreement.⁴ Thus, no violation of the Double Jeopardy Clause occurred when the trial court re-sentenced Metellus in accordance with rule 3.170(g). Next we determine the timeliness issue.

The Motion was Made Sixty Days After The Breach

Metellus contends that rule 3.170(g)(2)(A) is jurisdictional. Accordingly, Metellus argues that because the State did not file its motion to vacate the sentence within sixty days of the breach, the trial court lacked jurisdiction to entertain the motion and impose a harsher sentence on him. Metellus further argues that lack of jurisdiction cannot be waived by his...