Rodriguez v. State, 82-262

• Decision Date: 25 January 1983
• Docket Number: No. 82-262,82-262
• Citation: 441 So.2d 1129
• Parties: Gregorio RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1129

441 So.2d 1129

Gregorio RODRIGUEZ, Appellant, v.The STATE of Florida, Appellee.

No. 82-262.

District Court of Appeal of Florida Third District.

Jan. 25, 1983.

On Rehearing En Banc Nov. 22, 1983.

Kalter & Kutner and Robert Kalter, Miami, for appellant.

Jim Smith, Atty. Gen. and Paul Mendelson and Penny Hershoff Brill, Asst. Attys.Gen., for appellee.

Before HENDRY, BASKIN and FERGUSON, JJ.

FERGUSON, Judge.

The single question presented for review is whether a sentence imposed after a seven-week period of probation, which probation was agreed to by the defendant as an alternative to bail or incarceration while awaiting a presentence investigation, violates the double jeopardy clause of the United States Constitution.

After many hours of investigative work, law enforcement officers identified appellant as part of a check forgery ring which had defrauded local businesses of hundreds of thousands of dollars.Rodriguez admitted to having cashed approximately $170,000 worth of forged checks using stolen drivers' licenses, then entered a plea of guilty to twenty-three informations containing some seventy-five felony counts, including one count of first-degree grand theft.The condition of the plea offer was a "cap"(maximum) of ten years incarceration with the final sentence to be decided after the court had reviewed a presentence investigation report.At the plea hearing, the state voiced concern that the defendant would flee the jurisdiction if permitted to remain at liberty under a $20,000 bond while awaiting sentencing.An agreement was reached whereby appellant would remain at liberty on a short term of probation pending preparation and submission of the presentence report.Pertinent parts of the colloquy follow:

THE COURT: I can do one of two things: I can take the plea as contemplated and put him on probation with a special condition that he do a PSI, or I can see that he remains in jail, or I can increase the bond.

[DEFENSE COUNSEL]: Why would you have to do any of those?

THE COURT: Insurance to the State that he will be here.I agree with the State that at this time his chances are greater now that there is an agreed termination.

* * *

* * * THE COURT: I will take the plea and as part of the negotiations will be that he be placed on probation pending the presentence investigation and any failure to appear at the time of the presentence investigation will be a violation of his probation and he could get the maximum.

[DEFENSE COUNSEL]: Let me explain that to him, Judge.

THE COURT: I will explain it to him.It is contemplated now that if you enter a plea of guilty to these charges that the court will order a presentence investigation.Depending on the outcome of the presentence investigation, you could receive up to ten years in jail, from zero to ten years.

THE DEFENDANT: I understand.

THE COURT: The State Attorney is afraid that you are going to run, that you will not appear, and he asks the Court to take some assurance that you do appear.

The Court will do this: To assure that you will appear, the Court will accept the plea today and as part of the plea today will place you on a probation, and part of that probation is that you appear here on a particular day six weeks from now, whatever the date is, for imposition of sentence, which would be to ten years....

THE DEFENDANT: I understand.

* * *

* * *

[DEFENSE COUNSEL]: What do you want to do?Do you want to go on that probation?

THE DEFENDANT: Yes.

The court then entered an order, signed by the defendant, placing him on probation on all cases for a seven-week period with a special condition that defendant appear in court, after the Christmas holidays, for a disposition hearing.On January 13, 1982, appellant appeared before the court for sentencing as agreed.The court imposed a ten-year sentence to be followed by a ten-year period of probation.Appellant objected to the period of probation which was imposed to follow the ten-year sentence, ¹ but never challenged the legality of the ten-year sentence or the probation which was granted as a condition of release pending sentencing.

[DEFENSE COUNSEL]: Judge, for the record, I think I have to place an objection on the ten years consecutive probation to the ten years state prison.The agreements we had in discussions were a total liability for ten years.Actually, he is ending up with and [sic] open-end liability.He is going to get ten years prison and still be liable, once again, ten years for all these cases.This is something that goes far beyond the discussions with the State and the Court.

Otherwise it had been agreed that there was no legal reason why the sentence should not be imposed.For the reason that the defendant agreed to and benefited from the probation granted as a substitute for bail or incarceration, he has waived the right to attack the sentence by this appeal.SeePreston v. State, 411 So.2d 297(Fla. 3d DCA1982)(where youthful offender placed on probation, the terms of which he fully accepted, enjoyed, then violated, he waived the right to question the legality of the probation);King v. State, 373 So.2d 78(Fla. 3d DCA1979)(having accepted and enjoyed an unlawfully lenient probation in lieu of mandatory confinement, defendant waived the right to question the legality of the probation).

The case of Buckbee v. State, 378 So.2d 39(Fla. 3d DCA1979), though close on the facts, is distinguishable.In Buckbee, the condition upon which the court sought to revoke the defendant's probation was not a part of the formal probation order and, even if it had been, was the kind of condition which required a hearing and finding of violation before probation could be revoked.The probation graciously granted herein expressly contemplated that no violation of probation was required in order for the negotiated sentence to be imposed.

There is no lack of jurisdiction herein to impose the sentence.A sentence is not "imposed" until a sentencing hearing is concluded.Farber v. State, 409 So.2d 71, 73(Fla. 3d DCA1982).It was agreed by all concerned that there would be no sentencing until January 13, 1982, on which date the first and only "sentencing" occurred.But even if there otherwise might have been a jurisdictional bar, by the nature of the agreement appellant clearly waived any jurisdictional impediments.Cf.Tucker v. State, 417 So.2d 1006(Fla. 3d DCA1982)(although statute of limitations is said to be a jurisdictional bar to prosecution on lesser included offenses, a defendant can waive the bar if he thinks it does not work to his advantage);Oliver v. State, 379 So.2d 143(Fla. 3d DCA1980)(where defendant was charged with first-degree murder, a capital offense having no statute of limitations, and trial court thereafter accepted negotiated plea of nolo contendere to second-degree murder, defendant was estopped to subsequently assert applicability of statute of limitations for second-degree murder);Lerman v. Cornelius, 423 So.2d 437(Fla. 5th DCA1982)(Case No. 82-1214, opinion filed December 1, 1982)(double jeopardy no bar to reopening a case after sentencing where a condition of the plea had not been performed).See alsoBuckbee, 378 So.2d at 41(Schwartz, J., dissenting).

On these factswe reject appellant's contention that by having appeared in court on January 13, 1982he satisfied the special condition of probation and became, thereupon, entitled to be forever discharged."The Constitution does not require that sentencing be a [technical] game in which a wrong move by a judge means immunity for the prisoner."Farber v. State, 409 So.2d at 72, citingBozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822(1947).The judicial act complained of herein was entirely consistent with what was intelligently agreed upon, manifestly in appellant's best interest.

Affirmed.²

BASKIN, Judge (dissenting).

Defendant Rodriguez pled guilty to pending forgery and first-degree grand theft charges.The plea negotiations provided that he receive no more than ten years' imprisonment following the court's review of a presentence investigation (PSI) report.During preparation of the PSI, the court released Rodriguez on probation for seven weeks.As a condition of the probation, Rodriguez was required to appear in court on a specified date for resentencing.He appeared as required, and the court sentenced him to serve ten years in prison followed by ten years on probation.According to Rodriguez, the first probation imposed by the trial court constituted his lawful sentence, and the court was precluded from imposing the prison sentence by constitutional prohibitions against double jeopardy.I agree with Rodriguez's contentions.In my opinion, the trial court's utilization of probation as an alternative to bail during the period between acceptance of the plea and the subsequent sentencing constituted error.Rodriguez's consent offers no basis for affirmance because the court lost jurisdiction to impose another sentence in the absence of a violation of probation.Furthermore, his consent was not the product of free choice.By approving the novel use of probation in lieu of bail, the majority departs from established principles of law and embarks upon an unauthorized foray into judicial legislation.The result is in direct contravention of existing law.

The question at issue is whether, instead of releasing a defendant on bail after accepting a plea, the court may place him on a period of probation during preparation of the PSI and, at a later time, impose another sentence even though he has completed the probation and no grounds exist for revocation.In my opinion, the procedure employed by the court is prohibited for several reasons.First, section 948.04(2), Florida Statutes(1981) states:

(2) Upon the termination of the period of probation, the probationer shall be released from probation and shall not be liable to sentence for a crime...