State v. Gutierrez, 3D08-636.

• Decision Date: 25 March 2009
• Docket Number: No. 3D08-636.,3D08-636.
• Parties: The STATE of Florida, Appellant, v. Joseph GUTIERREZ, Appellee.
• Court: Florida District Court of Appeals

10 So.3d 158

The STATE of Florida, Appellant, v. Joseph GUTIERREZ, Appellee.

No. 3D08-636.

District Court of Appeal of Florida, Third District.

March 25, 2009.

Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellant.

Grey & Mourin and Juan Mourin, Miami, for appellee.

Before RAMIREZ and CORTIÑAS, JJ. and SCHWARTZ, Senior Judge.

CORTIÑAS, J.

The State of Florida ("State") seeks review of a trial court order granting Joseph Gutierrez's ("defendant") motion to mitigate sentence pursuant to rule 3.800(c) of the Florida Rules of Criminal Procedure. We reverse.

Defendant was charged with attempted second-degree murder and unlawful sale, delivery, or possession of a firearm with an altered or removed serial number. The defendant ultimately pled no contest to the lesser charge of aggravated assault with a firearm in exchange for 364 days in county jail, followed by one year of community control and three years of probation with the special conditions of anger management, a stay away order, and a prohibition on the possession of firearms (collectively the "Plea Terms").

On December 3, 2007, the trial court adjudged defendant guilty of aggravated assault with a firearm and sentenced him to five years in state prison with the understanding that if defendant surrendered on January 10, 2008, the Plea Terms would be imposed. On February 8, 2008, however, defendant filed a motion to mitigate his sentence. At the hearing on the motion, the trial court found that defendant surrendered as ordered and had not committed any crimes in the interim. The court also found that although great danger potentially existed, the victim experienced no actual harm, the defendant executed his crime in an unsophisticated manner, and the crime was an isolated incident for which defendant has shown remorse. The court granted the defendant's motion and mitigated the five-year prison sentence to one year of community control with three years probation and the special conditions of anger management, a stay away order, and a prohibition on firearm possession.

We find that the trial court erroneously granted defendant's motion to mitigate and improperly eliminated the incarcerative portion of his sentence. "A plea agreement is a contract and the rules of contract law are applicable to plea agreements." Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998) (citing State v. Frazier, 697 So.2d 944, 945 (Fla. 3d DCA 1997)). Because the plea agreement here imposed upon defendant a specific sentence, defendant cannot circumvent the plea bargain by filing a motion to mitigate. State v. Swett, 772 So.2d 48, 52 (Fla. 5th DCA 2000) (stating that a defendant's sentence negotiated pursuant to a plea agreement was part of a quid pro quo and, therefore, a defendant "cannot accept the benefit of [a plea] bargain without accepting its burden"); see also Garcia, 722 So.2d at 907 ("A defendant will not be relieved of an obligation that was...