State v. Jordan

• Decision Date: 25 April 2001
• Docket Number: No. 3D00-2497.,3D00-2497.
• Citation: 783 So.2d 1179
• Parties: The STATE of Florida, Petitioner, v. Reginald JORDAN, Respondent.
• Court: Florida District Court of Appeals

783 So.2d 1179

The STATE of Florida, Petitioner, v. Reginald JORDAN, Respondent.

No. 3D00-2497.

District Court of Appeal of Florida, Third District.

April 25, 2001.

Robert A. Butterworth, Attorney General and Steven R. Berger and Michael J. Neimand, Assistant Attorneys General, for petitioner.

Bennett H. Brummer, Public Defender and Maria E. Lauredo, Assistant Public Defender, for respondent.

Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN, SORONDO, and RAMIREZ, JJ.

ON REHEARING EN BANC

GREEN, J.

The state has brought this petition for writ of certiorari to challenge the trial court's final sentencing order which departed from the terms of a substantial assistance agreement. The respondent, Reginald Jordan, moved to dismiss the state's petition for lack of jurisdiction. We asked for supplemental briefs on the issue of jurisdiction. Those briefs were filed and the case was heard by a three judge panel. Thereafter, we sua sponte set the case for en banc argument to consider: 1) our jurisdiction to entertain this appeal; and 2) whether the law requires that we recede from our opinion in State v. Cure, 760 So.2d 243 (Fla. 3d DCA 2000). For the reasons that follow, we conclude that this court does not have jurisdiction to consider this matter. Accordingly, we grant the respondent's motion to dismiss. In so doing, our Cure decision becomes merely an advisory opinion from which we now recede to the extent it addresses the merits of the state's argument.

Jordan was charged with strong-arm robbery. Thereafter, Jordan and the state entered into a substantial assistance agreement which was signed by Jordan, his attorney, the assistant state attorney, and the trial court. The agreement was fully executed and discussed at a plea colloquy, wherein the terms and conditions of the agreement were fully explained and agreed to by both the parties and the trial court. The agreement provided that if Jordan complied with its terms, he would receive a ten-year "straight time, no minimum mandatory" sentence. Violation of the agreement, however, would result in a 40-year prison term with a 30-year minimum mandatory as a violent career criminal.

Less than six-months after Jordan entered into the agreement, he violated its terms by being arrested on another charge and failing to provide continued assistance to the police. Thereafter, the state moved for sentencing in accordance with the terms of the substantial assistance agreement. At the hearing, Jordan admitted that he had been arrested for burglary of a vehicle. Jordan also claimed that, although he had initially assisted the police pursuant to the terms of the substantial assistance agreement, he stopped because he feared for his and his family's safety. Jordan and his counsel then argued that the agreed upon sentence was too harsh and asked the court for leniency and mercy.

The court asked counsel if it had any authority to depart from the plea agreement to enter a lesser sentence. Previously, in State v. Cure, we held that a trial court had the discretion not to enforce the sentencing portion of a "boot camp" agreement that had been previously agreed to by the parties and the court. In this case, the defense counsel argued that under section 775.084, Florida Statutes (1999) (the "GORT" statute), the court could deviate "if there was no agreement" and suggested the court do the same thing here despite the agreement. The state, on the other hand, argued that the court was required to impose the 40-year, with a 30-year minimum mandatory, violent career criminal sentence contemplated by the agreement.

Thereafter, the court decided that it would not enforce the terms of the substantial assistance agreement. Moreover, the trial court sua sponte held that the state had not met its burden of proving that Jordan qualified for enhanced sentencing, finding that it was not enough for Jordan to have agreed to be sentenced under the GORT statute—the state still had to prove that Jordan qualified as a GORT. The state, apparently taken by surprise, sought a one-hour continuance so that it could produce a fingerprint examiner to prove that Jordan indeed qualified for enhanced sentencing under the GORT statute. The trial court denied the continuance. Notwithstanding six prior state felony convictions, one federal felony conviction, and four state misdemeanor convictions, the trial court sentenced Jordan to the same ten-year sentence he would have received had he complied with the substantial assistance agreement. The state then instituted this appeal.

The state's right to appeal in a criminal case, however, is not a matter of right and is available only as provided by statute. See State v. MacLeod, 600 So.2d 1096 (Fla.1992)

; Ramos v. State, 505 So.2d 418 (Fla.1987); Whidden v. State, 159 Fla. 691, 32 So.2d 577 (1947).

Our case law clearly establishes that section 924.07 is the only basis upon which the state may appeal as a matter of right and that appeals may be taken only in the express categories contained in section 924.07.

MacLeod, 600 So.2d at 1098. Section 924.07, in turn, authorizes the state to appeal two types of sentences: 1) a sentence that is illegal, and 2) a sentence imposed "below the lowest permissible sentence established by the Criminal Punishment Code under chapter 921." See § 924.07(e) & (i), Fla.Stat. (1999). In this case, Jordan's sentence was neither illegal nor a "departure sentence." Thus, the state recognizing that it has no statutory right to a direct appeal, sought review before this court by way of common-law certiorari.

Jordan argues that the state's petition must be dismissed. He claims that a writ of certiorari is categorically unavailable to review a final order where no right of appeal has been provided by statute. In turn, the state relying on State v. Swett, 772 So.2d 48 (Fla. 5th DCA 2000), and State v. Baca, 707 So.2d 766 (Fla. 2d DCA 1998), claims that it must be able to seek appellate review to insure its ability to enforce plea and/or substantial assistance agreements.

In Swett, the state reduced an original charge of first degree murder to second degree murder in exchange for the defendant's guilty plea. The defendant was sentenced to 38.5 years incarceration followed by 15 consecutive years of probation. Thereafter, Swett timely filed a motion to modify sentence seeking to mitigate his incarcerative period. The trial court granted the motion and reduced the sentence to 21 years. 772 So.2d at 49. The state appealed the trial court's order granting a defendant's motion to modify a sentence which had been imposed as part of a plea bargain. Although the fifth district recognized that the state had no express authority to appeal from an order mitigating a sentence, it found that review in that instance must be available or the state would be discouraged from entering into future plea agreements. Swett, 772 So.2d at 52. That case, however, is distinguishable from the case at bar because the reduced sentence, entered by the trial court, constituted a "departure sentence" which is clearly appealable under section 924.07(1)(i), Fla.Stat.

Similarly, in Baca, following the dismissal of his appeal of sentence, the defendant moved to reduce sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion and the defendant moved for reconsideration. The court granted the motion for reconsideration, and reduced the defendant's sentence. The state appealed and the district court, treating the appeal as a petition for writ of certiorari, quashed the order finding that the trial court did not have the jurisdiction to reduce the defendant's sentence. Subject matter jurisdiction is clearly an issue that the state may raise by a petition for certiorari; see State v. Blue, 603 So.2d 648 (Fla. 5th DCA 1992)

; State v. Rhodes, 554 So.2d 1229 (Fla. 2d DCA 1990); and thus Baca bears little relation to the matter before us.

We conclude that we lack jurisdiction to entertain this appeal by way of certiorari review. The case law of this state, and particularly this court, has unequivocally provided that the state cannot circumvent the absence of a statutory right of appeal from a final order through a petition for certiorari. See State v. Pettis, 520 So.2d 250 (Fla.1988)

. See also State v. F.G., 630 So.2d 581, 583 (Fla. 3d DCA 1993) (where a non-appealable final order is entered, "certiorari review is foreclosed by State v. Pettis."); Jones v. State, 477 So.2d 566 (Fla.1985) (stating that: "the district court erred ... in reviewing by certiorari a case it could not review by appeal."); State v. G.P., 429 So.2d 786, 789 (Fla. 3d DCA 1983) (where there is no statutory authorization and thus a jurisdictional limitation to the consideration of a state appeal from a final judgment, "certiorari may not be used to circumvent that limitation."); State v. C.C., 449 So.2d 280, 281 n. 4 (Fla. 3d DCA 1983) (Schwartz, C.J. specially concurring) ("I think it obvious that the court cannot save an appeal from a final judgment which it has no jurisdictional authority to consider by treating it as a petition for certiorari."). Thus, because the order at issue in this case was a final sentencing order from which the state has no right of direct appeal, certiorari cannot be used to supply that right, and the state's petition must be dismissed.

We recognize that our lack of jurisdiction over this matter gives both the criminal defendant and trial court the unfettered discretion to completely disregard the terms and conditions of plea and/or substantial assistance agreements. We find this especially troubling given the fact that such agreements are a matter of contract law, State v. Frazier, 697 So.2d 944 (Fla. 3d DCA 1997) (rules of contract law are applicable to plea agreements); Madrigal v. State, 545 So.2d 392 (Fla. 3d DCA 1989) (contract principles are to be applied to plea agreements); see...