State v. Vixamar, 95-3458

• Decision Date: 22 January 1997
• Docket Number: No. 95-3458,95-3458
• Parties: 22 Fla. L. Weekly D251 STATE of Florida, Appellant, v. Rogel VIXAMAR, Appellee.
• Court: Florida District Court of Appeals

Page 300

687 So.2d 300

22 Fla. L. Weekly D251

STATE of Florida, Appellant, v. Rogel VIXAMAR, Appellee.

No. 95-3458.

District Court of Appeal of Florida,

Fourth District.

Jan. 22, 1997.

Robert A. Butterworth, Attorney General, Tallahassee and John Tiedemann, Assistant Attorney General, West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellee.

GROSS, Judge.

This case concerns the limitations on a court's ability to use dismissal as a sanction to enforce a negotiated disposition which did not become binding in the manner specified in Florida Rule of Criminal Procedure 3.172(f).

Vixamar was charged with aggravated battery on his former wife. At a Friday calendar call for trial, he struck a bargain with the prosecutor. Vixamar's lawyer announced the terms of the agreement:

The State has agreed to release Mr. Vixamar today, and reset it for a status check Tuesday morning at 8:30. If at that time [the prosecutor] has no witnesses, he is willing to nol-pros. And if he does, then we'll reset it for a misdemeanor plea at that point.

The following Tuesday, Vixamar and his lawyer appeared in court at 8:30 a. m. Neither the victim nor the prosecutor handling the case were present. The assistant state attorney standing in for his coworker knew very little about the case:

[The ASA]: ... I think we were supposed to locate the victim and indicate to the Court if they're [sic] available for trial. I do not have any indication in the file. I believe [the prosecutor assigned to the case] is running a little behind.

[Vixamar's attorney]: We move to dismiss.

[The Court]: Granted.

Even by 9:00 a.m., none of the other prosecutors could explain the "no shows."

Dismissal in this case was not warranted on a constitutional basis, under the rules of criminal procedure, or pursuant to case law.

The agreement between the state and defendant is best characterized as a negotiated disposition, since it did not necessarily contemplate that the defendant would enter a plea. Even if the agreement between the state and defendant amounted to a plea bargain, there was no constitutional violation. A defendant's acceptance of a prosecutor's proposed plea offer creates no constitutional right to have the bargain specifically enforced. As the United States Supreme Court observed in Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984),

A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.

Just as there was no constitutional violation, there was no breach of any rule of criminal procedure. Florida Rule of Criminal Procedure 3.172(f) provides:

(f) Withdrawal of Plea Offer or Negotiation. No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.

Assuming that this was a "negotiation" within the meaning of rule 3.172(f), it is clear that it was not accepted by the trial judge "formally" as the rule contemplates. After the defendant's attorney announced the proposed disposition, the court's only response was "[a]ll right. You have a written order on the release?" Because the negotiation in this case was not made binding in the manner set forth in rule 3.172(f), the state could have withdrawn it at any time without justification. See State v. Reasbeck, 359 So.2d 564, 565 (Fla. 4th DCA 1978). For this reason, dismissal was not an appropriate sanction when the state did not nolle prosequi at the second hearing.

Absent a constitutional or rule ground authorizing a dismissal, the only line of cases which might apply derives from State v. Davis, 188 So.2d 24 (Fla. 2d DCA), cert denied, 194 So.2d 621 (Fla.1966). See Charatz v. State, 577 So.2d 1298 (Fla.1991); State v. Upshaw, 648 So.2d 851 (Fla. 3d DCA 1995); Flaherty v. State, 367 So.2d 1111 (Fla. 3d DCA 1979); Williams v. State, 341 So.2d 214 (Fla. 2d DCA 1976); Butler v. State, 228 So.2d 421 (Fla. 4th DCA 1969). Davis involved the state's agreement with a defendant to submit to a polygraph examination by an operator selected by the parties. The bargain struck was that if the examination showed that the defendant was truthful in denying his guilt, then the state would not prosecute him; but if the examination indicated that the defendant was not truthful about his innocence, then he would enter a plea of guilty to a lesser charge. 188 So.2d at 25. Even though the polygraph operator opined that the defendant was telling the truth, the state refused to nolle prosequi the charges. The second district granted the defendant's motion to quash the indictment on the theory that the state should not be permitted to renege on a pledge of public faith:

Defendant had agreed to plead guilty to manslaughter if the test was not in his favor, but the state had agreed to dismiss the case if the results indicated defendant was telling the truth. This was a pledge of public faith--a promise made by state officials--and one that should not be lightly disregarded. As Judge Goldman stated in his dissenting opinion in State v. Ashby, 81 N.J.Super. 350, 195 A.2d 635 (1963)(which case was reversed by the New Jersey Supreme Court in State v. Ashby, 43 N.J. 273, 204 A.2d 1 (1964)),

'In this case the prosecutor * * * promised defendant that the indictments pending against him would be dismissed. The wisdom of the agreement aside, that promise constituted a pledge of the public faith which should not have been repudiated. The morals of the market place are a poor guide for the sovereign's actions.' 195 A.2d at 646.

Davis, 188 So.2d at 27. This court has relied on Davis to specifically enforce the state's promise to drop criminal charges if a defendant were found to have been truthful on a polygraph exam. Butler, 228 So.2d at 424. The theoretical basis of Davis and Butler does not require approval of the trial court under rule 3.172(f) as a precondition to a defendant's entitlement to specific performance of a bargain with the state. The "pledge of public faith" occurs at the time the prosecution enters into an agreement with a defendant. A court's later approval of the deal neither enhances nor detracts from the prosecutorial obligation to uphold "our historical notions of fair play and the very majesty of our government." Butler, 228 So.2d at 424-25. The responsibility of a prosecutor to act fairly derives from the stature and function of the office. See James v. State, 305 So.2d 829 (Fla. 1st DCA 1975).

Not every prosecutorial agreement implicates a pledge of the public faith so that specific performance of a promise is justified. The unifying theme of those cases holding the state to its word is that the defendant's part of the bargain involved either substantial conduct or a serious risk of an adverse result or both. The defendant in Davis submitted to a polygraph exam and agreed to plead guilty to manslaughter if the test result was not in his favor. The defendant in Butler submitted to a polygraph, with the understanding that unfavorable test results could be introduced in evidence at his trial. The defendant in Williams placed himself at risk by acting as an informant for the police. 341 So.2d at 215. The defendant in Flaherty completed the pretrial intervention program and was not convicted of a felony during a two year period. 367 So.2d at 1112. The defendant in Upshaw successfully completed a twelve month substance abuse program. 648 So.2d at 852. The defendant in Charatz served five months of community control and obtained employment which could have continued only if a term of the plea bargain--- that adjudication be withheld---were to remain in force.

In this case, the acts required of the defendant---that he show up in court on a Tuesday---hardly rise to that level of performance in the line of cases following Davis so that specific performance of the state's promise is appropriate. Nor was this a case where a defendant was unfairly prejudiced by the prosecutor's conduct. Therefore, both dismissal and specific performance of the negotiated disposition were improper.

Davis is an exception to the common law rule that the prosecutor controls the prosecution of a case, that the prosecutor alone has the "exclusive discretion to decide (prior to double jeopardy) whether to prosecute." State v. Brown, 416 So.2d 1258, 1259 (Fla. 4th DCA 1982); State v. Darnell, 335 So.2d 638 (Fla. 4th DCA 1976); Wilson v. Renfroe, 91 So.2d 857 (Fla.1956); see State v. Pope, 675 So.2d 165 (Fla. 3d DCA 1996). The only rule of procedure to allow a non-merits dismissal of a criminal case is Florida Rule of Criminal Procedure 3.220(n)(1), which involves a party that "has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule." See State v. Ryan, 513 So.2d 753, 754 (Fla. 4th DCA 1987); State v. Burnison, 438 So.2d 538 (Fla. 2d DCA 1983); State v. Oliver, 322 So.2d 638 (Fla. 3d DCA 1975). Dismissal of charges against a defendant is an extreme sanction that should be utilized with caution, only when a lesser sanction would not accomplish the same result. State v. Del Gaudio, 445 So.2d 605, 608 (Fla. 3d DCA), rev. denied, 453 So.2d 45 (Fla.1984); Ryan, 513 So.2d at 754. The rationale for so limiting the sanction of dismissal of criminal charges "is to insure that the public's interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor's conduct." Del Gaudio, 445 So.2d at 608. That dismissals are rarely proper is best exemplified by ...