State v. Rojas

• Docket Number: 3D21-1018,3D21-1019
• Decision Date: 04 January 2023
• Parties: The State of Florida, Appellant/Cross-Appellee, v. Jeremy Rojas, Appellee/Cross-Appellant.
• Court: Court of Appeal of Florida (US)

The State of Florida, Appellant/Cross-Appellee,
v.
Jeremy Rojas, Appellee/Cross-Appellant.

Nos. 3D21-1018, 3D21-1019

Florida Court of Appeals, Third District

January 4, 2023

Not final until disposition of timely filed motion for rehearing.

Appeals from the Circuit Court for Miami-Dade County, Lower Tribunal Nos. F17-20909 and F19-10464 Lody Jean, Judge.

Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellant/cross-appellee.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellee/cross-appellant.

Before EMAS, LINDSEY and GORDO, JJ.

EMAS, J.

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INTRODUCTION

Jeremy Rojas and the State entered into a written plea agreement that resolved two separate criminal cases: one arising out of an arrest in 2017, and the other arising out of an arrest in 2019 (while Rojas was on probation for his 2017 case). Under the terms of the agreement, and in exchange for pleading guilty to the charges in the 2019 case and admitting he violated probation, the State agreed Rojas would be sentenced to community control, followed by probation. The parties also expressly agreed that if Rojas violated community control or probation, he would be sentenced to "no less than ten (10) years state prison" on his 2017 case and "no less than. . . five (5) years" on his 2019 case. Rojas further agreed that he could not file a motion to mitigate those subsequent sentences. The trial court approved the negotiated plea and sentenced Rojas accordingly.

Three months later, Rojas was charged with violating the terms of his community control. Following a hearing, the trial court found Rojas in violation, and initially imposed a sentence of ten years' state prison (in the 2017 case) and five years' state prison (in the 2019 case), as required by the negotiated plea agreement. However, and over State objection, the trial court then mitigated each of those sentences to three years' imprisonment, to run concurrently.

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The State appeals the mitigated three-year sentences, contending the trial court had no authority or discretion to deviate from the previously approved and agreed-upon sentences, and further asserts that the mitigated sentences constitute unauthorized downward departure sentences. Rojas cross-appeals the trial court's orders finding him in violation of his community control. For the reasons that follow, we affirm the trial court's orders finding Rojas violated his community control, but reverse the orders mitigating Rojas' sentences.

FACTS AND PROCEDURAL HISTORY

These consolidated appeals involve two separate criminal cases filed against Jeremy Rojas. In F17-20909, Rojas was charged with burglary with assault or battery (a first-degree felony punishable by life imprisonment), shooting/throwing a deadly missile (a second-degree felony punishable by fifteen years' imprisonment), corruption by threat against a public servant (a third-degree felony punishable by five years' imprisonment) and two misdemeanors.

In April 2018, pursuant to a negotiated plea, Rojas pled guilty, and the court imposed a split sentence (on the first two felony counts) to 270 days in

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jail, followed by six years' probation.^[1] In May 2019, while on probation, Rojas was arrested and charged with possession of cocaine (a third-degree felony) in F19-10464. As a result of his arrest on this new charge, the State also filed an affidavit alleging that Rojas violated his probation on the 2017 case.

In July 2020, as a result of negotiations between the parties, Rojas and the State entered into a written plea agreement to resolve both cases. In exchange for pleading guilty to possession of cocaine (the 2019 case) and admitting that he violated his probation on the 2017 case by committing a new crime, the parties agreed the trial court would modify Rojas' probation and place him on two years of community control followed by three years of probation.^[2]

The parties' written agreement included the following terms:

• "The Defendant acknowledges and agrees that should he be found in violation, the Defendant will be sentenced to no less than ten (10) years state prison in F17-20909 and to five (5) years state prison in F19-10646."

• "The defendant's guidelines are 88.5 [months] at the bottom to a maximum sentence of LIFE in prison."

• "The Defendant shall not file a motion to set aside guilty plea, or motion to mitigate."

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• "The Defendant acknowledges that the State is entering this agreement based on the mitigation provided by the Defendant. The Defendant also acknowledges that this mitigation will not be available to assist him in his case in any subsequent violation of probation."

(Emphasis added).

Rojas and his attorney signed the written plea agreement and initialed each page as well. In announcing the agreement to the trial court, the prosecutor summarized:

PROSECUTOR: So, the defendant has two cases presently, a probation violation as well as an open case, this will be closing out both, pursuant to this plea agreement. He will be released, and his probation will be modified. On the probation case he will be placed on two years community control, followed by two years' probation. As far as the open case, he will be adjudicated guilty and placed on two years community control, followed by three years of reporting probation.

There is also a pertinent provision in which the defendant understands and acknowledges that any violation subsequent that the State does [prove by] a preponderance of the evidence will result in a term of incarceration of no less than 10 years of State prison on the probation case-

***

So, if he violates the terms of his probation and the State does prove that by a preponderance of the evidence he is acknowledging and understanding that he will be sentenced to no less than 10 years of State prison on the appropriate case, as well as 5 years of State prison on the open case.

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Defense counsel then advised the trial court:

DEFENSE COUNSEL: Judge, just for your edification, that hammer clause was put in as part of the bargaining process, and it was explained to Jeremy, and he is well aware.

(Emphasis added).

The trial court conducted a plea colloquy with Rojas, addressing each of the terms and conditions of the agreement. The trial court found Rojas entered the plea knowingly and voluntarily, that he understood the nature and consequences of his plea, and that he was represented by competent counsel with whom he was satisfied. The trial court entered a written order accepting, approving and ratifying the terms of the agreement, including those set forth above, and imposed the agreed upon sentence of community control followed by probation.

Less than three months later, on October 28, 2020, an affidavit of violation of community control was filed against Rojas, alleging that he willfully violated the terms of his community control by deviating from his schedule and approved travel routes without permission, leaving his GPS tracking device behind, and failing to be at home by his established 10 p.m. curfew.

On March 31, 2021, following a community control violation hearing, the trial court, after making factual findings and credibility determinations,

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concluded that the State had established Rojas violated the terms of community control. The trial court inquired whether she had any discretion in sentencing Rojas, given the mandatory prison sentences agreed to as part of the plea agreement.^[3] Defense counsel contended the court was not required to impose the ten-year and five-year prison sentences (the so-called "hammer clause") but had...