State v. Gitto
| Decision Date | 26 June 1998 |
| Docket Number | No. 97-1239, No. 97-1860, No. 97-1934., No. 97-1377, No. 97-1376 |
| Citation | 731 So.2d 686 |
| Parties | STATE of Florida, Appellant, v. Anthony P. GITTO, Allen Silas, Alfred Perkins, Justin P. Harbin And Corey Harpin, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Kelli R. Orndorff, Jennifer Meek, Robin A. Compton, and Maximillian J. Changus, Assistant Attorneys General, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, Jennifer Meek, Assistant Attorney General, Daytona Beach, for Appellant (on rehearing).
Roger L. Weeden, Orlando, for Appellee Anthony P. Gitto.
James B. Gibson, Public Defender, and M.A. Lucas, Assistant Public Defender, Daytona Beach, for Appellee Allen Silas.
James B. Gibson, Public Defender, and M.A. Lucas, Assistant Public Defender, Daytona Beach, for Appellee, Allen Silas (on rehearing).
Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellee Alfred Perkins.
Janet Brook Goodrich, Assistant Public Defender, Daytona Beach, for Appellee Corey Harpin.
Daniel D. Mazar, of Mead & Mazar, Attorneys at Law, Winter Park, for Appellee Justin P. Harpin.
EN BANC
We have consolidated these cases for consideration because they involve a common issue—the authority of the trial court to strike a plea bargain with a defendant over the prosecutor's objection.1 Because we hold that the trial court has no authority to strike such plea bargains, it is error for the trial court to sentence a defendant in reliance on such a plea. Accordingly, we vacate the sentence in each of the consolidated cases.
STATE v. GITTO, Case No. 97-1239.
Gitto was charged by information with one count of arson and one count of being an accessory after the fact to arson for his involvement in burning two cars during an evening of random destruction. His guidelines scoresheet showed a permissible sentence of 29.9 months to 36.1 months in the Department of Corrections. He pled guilty to both offenses pursuant to a plea agreement he struck with the trial judge. The plea stated:
Court has indicated it would give a non-incarcerative sentence either as a downward departure or youthful offender.
The state objected to the imposition of a downward departure. Gitto nonetheless received four years probation on each offense, to run consecutively. The trial court offered three written reasons to support its downward departure sentence.
STATE v. HARBIN, Case No. 97-1860.
Harbin was charged by information with two counts of arson for burning two cars during an evening of random destruction. Harbin's guidelines scoresheet showed a permissible sentence of 42.1 to 70.2 months in the Department of Corrections. He pled guilty to both offenses based on the following understanding reached with the court:
Ct. has indicated that it would "cap" sentence at 42 months with the possibility of a downward departure and youthful offender treatment with restitution.
Pursuant to the agreement, Harbin was given probation and adjudication was withheld. The prosecutor objected to the trial court's entry of a downward departure sentence, whereupon the trial court made oral findings on the record designed to sustain the departure.
STATE v. SILAS, Case No. 97-1376.
Silas was on probation for burglary and theft. He was charged with resisting an officer with violence and battery on a law enforcement officer, as well as with violating his probation. He pled guilty to the new offenses, based on an understanding with the trial court that he would receive five years drug offender probation, with the special condition that he receive specified drug treatment. The trial court (orally) justified the departure on the grounds that Silas suffered from a drug addiction and was amenable to treatment. The prosecutor objected to entry of a downward departure sentence because of a lack of evidence to support the reasons given by the trial court.
STATE v. HARPIN, Case No. 97-1934.
Harpin was charged with burglary of a dwelling and grand theft after breaking into the home of a friend. He was also charged with violating probation he had received for burglary of a structure, grand theft, and criminal mischief. At the plea hearing, the court insisted on an open plea, saying it did not want to be bound by the sentence. However, the court had apparently indicated to defense counsel a "99% certainty that the defendant would be sentenced as a youthful offender to boot camp." At sentencing, a different judge sentenced Harpin on the two new offenses and resentenced him on the original offenses for violating his probation. With respect to the two new offenses, his guidelines scoresheet showed a total of 64.8 points, for a minimum sentence of 27.6 months in the Department of Corrections and a maximum sentence of 46 months. He received a guidelines sentence of two and a half years (30 months) in the Department of Corrections on each offense, to be run concurrently. On the original offenses, Harpin apparently received one year and one day in the Department of Corrections. Subsequent to sentencing, the public defender filed a motion to modify Harpin's sentence, due to promises made by the original trial judge at the plea hearing. At the hearing on defendant's motion to modify his sentence, the public defender represented that the trial court had promised him a specific sentence in return for defendant's plea, but had refused to place the agreement on the record because the court wanted to "scare" the defendant. The state strongly objected to the trial court's entry of a downward departure sentence, in part because defendant had not filed a motion to withdraw his plea. The trial court resentenced Harpin on the new offenses because the court had made representations to him which were "inconsistent" with the sentence he had received. He was resentenced to a downward departure sentence of 364 days in the county jail.
Perkins was charged in lower court case number 96-1922 with possession of cocaine and possession of marijuana. Based on the commission of these new offenses, he was also charged with a violation of his probation in lower court case number 90-521CFB (). Over the state's objection, he entered into a plea agreement with the trial court, not the prosecutor, which purported to cover both the new offenses and VOP. The plea agreement stated:
Adjudication, if not already adjudicated; 4 years probation; special condition that Defendant complete the Sanford Bridge and court costs.
For the new offenses, Perkins was sentenced to four years of probation for possession of cocaine and six months probation for possession of marijuana. He was also sentenced to four years of probation for violating his probation with respect to one of the aggravated battery counts.2 All counts were to run concurrently. As a condition of his probation, Perkins was required to get inpatient treatment for his drug addiction at Sanford Bridge. The reason for entry of a downward departure stated by the court was:
The Defendant is addicted to drugs as found in the TASC evaluation and is amenable to inpatient treatment at the Bridge.
These five cases ostensibly involve entry of downward departure sentences. However, they also concern the power of the trial court to enter into a plea agreement with the defendant, since the sentences were reached by plea negotiations between the trial judge and the defendant.
We conclude, consistent with courts of other jurisdictions, that the trial court has no power unilaterally to enter into a plea agreement with the defendant and that such an agreement cannot form the basis of a downward departure from the guidelines.3 The inability of the trial court to plea bargain with a defendant has its genesis in the doctrine of separation of powers, which is a cornerstone of our form of government. In Florida, the doctrine is incorporated in Article II, section 3, of the Florida Constitution, which provides:
The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.
The purpose of this provision was to incorporate well-known common-law principles of the doctrine of separation of powers into Florida law. Petition of Florida State Bar Association, 155 Fla. 710, 21 So.2d 605 (1945). Our Constitution specifically prohibits a person belonging to one of such branches from exercising any powers "appertaining to either of the other branches unless expressly provided herein." Hoffman v. Jones, 280 So.2d 431, 440 (Fla. 1973).
In the criminal context, the power of the executive branch, which enforces or executes the laws, is wielded through the office of the prosecutor. The prosecutor has control over the decision when and whether to bring criminal charges, and which charges will be brought. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987)
. As an extension of the power to control the charges brought against a defendant, the prosecutor has the exclusive authority to enter into a plea bargain with the defendant. Id. Reposing this authority in the hands of the prosecutor is grounded on practical, as well as constitutional, considerations. Since the prosecutor is the person most aware of the strengths and weaknesses of his case, and the facts upon which the prosecution is based, it is the prosecutor, and not the court, who should determine whether and when to enter into a plea bargain. Commonwealth v. Corey, 826 S.W.2d 319 (Ky. 1992).4 Concentration of the power to plea bargain in the hands of the prosecutor also encourages greater prosecutorial accountability and fosters more even-handed enforcement of...
To continue reading
Request your trial
-
State v. Warner
...767 (Fla. 4th DCA 1998) ("Warner"), which expressly and directly conflicts with the Fifth District's en banc opinion in State v. Gitto, 731 So.2d 686 (Fla. 5th DCA 1998),review denied, 728 So.2d 204 (Fla.1998), and review denied, 728 So.2d 202 (Fla.1998)("Gitto"). In Warner, the Fourth Dist......
-
State v. Randall, 99-1328.
...the state argues that the trial judge improperly negotiated a sentence with Randall in exchange for a guilty plea. See State v. Gitto, 731 So.2d 686 (Fla. 5th DCA), rev. denied, 728 So.2d 202 (Fla.1998). However, in this case the state did not object to the alleged improper plea bargaining,......
-
State v. Swett
...falls within the sentencing range available under the 1994 guidelines. 6. Disapproving this court's en banc decision in State v. Gitto, 731 So.2d 686 (Fla. 5th DCA 1998). ...
-
Salters v. State, 2D02-2414.
...this issue, and it approved the holding in State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998), and disapproved State v. Gitto, 731 So.2d 686 (Fla. 5th DCA 1998). Warner, 762 So.2d at Here, Salters and his attorney negotiated the plea and tendered it after an agreement was reached with the t......