State v. Bonnett

• Decision Date: 09 July 2008
• Docket Number: No. 3D07-1654.,3D07-1654.
• Citation: 985 So.2d 1194
• Parties: The STATE of Florida, Appellant, v. Trisha Nicole BONNETT, Appellee.
• Court: Florida District Court of Appeals

985 So.2d 1194

The STATE of Florida, Appellant, v. Trisha Nicole BONNETT, Appellee.

No. 3D07-1654.

District Court of Appeal of Florida, Third District.

July 9, 2008.

Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellant.

Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellee.

Before COPE, RAMIREZ, and WELLS JJ.

WELLS, Judge.

The State appeals from an order dismissing a theft charge against Trisha Nicole Bonnett entered after the State refused to stipulate to a factual basis for a plea. We reverse because the factual basis for the plea had already been spread on the record by the State and agreed to by Bonnett by the time the State was asked to stipulate, and because dismissal as a sanction for the State's refusal to stipulate was too harsh a sanction in this case.

Bonnett was charged by information with a single count of theft:

TRISHA NICOLE BONNETT, on or between April 12, 2007 and April 23, 2007 . . . did unlawfully and knowingly obtain or use, or did endeavor to obtain or use perfumes and/or grocery and/or cookware and/or bedding and/or clothing value of three hundred dollars ($300.00) or more, but less than five thousand dollars ($5000.00), the property of Walmart and/or Beth Rivera, as owner or custodian, with the intent to either temporarily or permanently deprive the owner or custodian of the right to the said property or a benefit therefrom, or to appropriate the same to said defendant's own use or the use of a person not entitled thereto, in violation of s. 812.014(1) & (2), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

After the State announced that it was willing to resolve this charge in exchange for a withhold of adjudication, two years probation, fifty hours of community service, and restitution in the amount of $641.82, the trial court announced that it would not order restitution. After advising the court of the factual basis for its offer, the State withdrew the offer when the trial court reconfirmed its intention not to order restitution:

MR. GIOVANNETTI [THE STATE]: Withhold adjudication, two years reporting probation, $641.82 in restitution, 50 community service hours.

THE COURT: Who is the restitution due to? . . . The Court would not make that a special condition of probation, the restitution. It would be a criminal restitution order.

MR. GIOVANNETTI: Judge, in this case it is not a case where the defendant stole, walked in a store and shoplifted. She was an employee of the store and rang these up for somebody and chose not to charge them.

Walmart may be able to live without the $641. It is not the point. The point is they had an employee/employer relationship, and she betrayed that relationship.

THE COURT: . . . As to the money, she has to provide for the child. If she cannot pay the money, then I will not take her into custody for that.

If Walmart wants to recover the money, then they can recover the money.

Following this exchange, the case was temporarily passed.

When the hearing on this matter resumed, the court asked counsel for Bonnett what his client wanted to do, to which he replied that she wished "to accept." The trial judge swore Bonnett and, over another State objection, conducted the following colloquy:

THE COURT: Ms. Bonnett, do you swear to plead no contest to the charges and have the Court withhold adjudication and suspend execution of sentence?

THE DEFENDANT: Yes.

THE COURT: Do you understand that you don't have to do that? You have the right, if you want to, to have a trial by jury. And if you are not successful at trial to appeal it to a higher court?

THE DEFENDANT: Yes.

THE COURT: Do you understand, finally, that this is going to close your case. The Court is going to withhold adjudication today and suspend execution of sentence?

THE DEFENDANT: Yes.

THE COURT: If you are not a U.S. Citizen, this could cause you to be deported from the United States, do you understand?

THE DEFENDANT: Yes.

THE COURT: Do you have any question?

THE DEFENDANT: No, sir.

The trial judge then asked the attorneys for the defense and the State to stipulate to the factual basis for the plea the court had just taken. Bonnett's counsel stipulated that a factual basis for the plea existed, but the State refused to participate. Concluding that the State's refusal to participate constituted an admission that no factual basis existed, the charge was dismissed:

THE COURT: Do the attorneys stipulate there is a factual basis for the plea?

MR. BUSTAMANTE [Defense counsel]: So stipulate.

THE COURT: Does the State stipulate?

MR. GIOVANNETTI: No, Judge. We object to the plea.

THE COURT: Do you stipulate there is a factual basis for the plea?

MR. GIOVANNETTI: No. We object to the plea. We are not going to participate in the plea colloquy. If your Honor would like to review the court file and find a factual basis on your own, you are welcome to.

THE COURT: The State finds there is no factual basis for the plea. The Court dismisses the charges.

MR. BUSTAMANTE: Thank you, your Honor.

THE COURT: Okay. There is no withhold. The case is dismissed. The State does not believe there was a factual basis for the plea.

MR. GIOVANNETTI: That's not what I said, Judge.

The trial court thereafter entered a written order dismissing the information with prejudice:

The rules state that the prosecuting attorney "shall apprise the trial judge of all material facts known to the attorney regarding the offense and the defendant's background prior to acceptance of the plea." Fla. R.Crim. P. 3.171(b)(2)(A). Therefore, the Court can infer that there are two explanations for the prosecuting attorney's actions. One is that the prosecuting attorney was willfully refusing to perform his lawful duties. The other, was that there was not a factual basis for the plea. The Court prefers to believe the latter explanation. The State had the...