State v. Werner, 57920

Decision Date25 June 1981
Docket NumberNo. 57920,57920
Citation402 So.2d 386
PartiesSTATE of Florida, Appellant, v. Robert K. WERNER and Jack E. Carlson, Appellees.
CourtFlorida Supreme Court

Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, and Janet Reno, State's Atty. and Arthur Joel Berger, Asst. State's Atty., Miami, for appellant.

Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellee Robert K. Werner.

Martin Lemlich, Miami Beach, for appellee Jack E. Carlson.

ENGLAND, Justice.

Robert K. Werner and Jack E. Carlson were charged by information with trafficking in cocaine in violation of section 893.135, Florida Statutes (1979). This appeal comes to us under article V, section 3(b)(1), of the Florida Constitution (1972), from an order of the trial court granting their motions to dismiss the charges against them and declaring the statute unconstitutional.

All but one of the issues presented by this appeal were resolved against Werner and Carlson in State v. Benitez, 395 So.2d 514 (Fla.1981), and State v. Yu, 400 So.2d 762 (Fla. 1981). The one unresolved issue they raise is whether the term "may" in section 893.135(3) is unconstitutionally vague, since it vests the prosecutor with unbridled discretion when engaging in so-called "post-conviction information bargaining." Subsection (3) provides that "(t) he state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals." Werner and Carlson claim that this provision leaves open the possibility that a prosecutor might secure "substantial assistance" from the defendant, and yet not live up to his side of the bargain by moving for a reduction or suspension of the sentence. While their concerns may be sincere, they do not provide a constitutional basis to invalidate the enactment.

State attorneys are "the prosecuting officer(s) of all trial courts" under our constitution 1, and as such must have broad discretion in performing their duties. Discretion to initiate the post-conviction information bargaining process is inherent in the prosecutorial function. Absent a clear constitutional violation in a particular factual context, we refuse to intrude on the prosecutorial function by holding subsection (3) unconstitutional on its face.

Additionally, section 893.135 does not directly abrogate the substantive rules of law governing plea bargaining and plea arrangements 2, and these rules should be followed, to the extent they can in a post-conviction context, by the parties and the trial judge. Good faith compliance...

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29 cases
  • Dickerson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 20, 1982
    ...his office has been answered to his detriment by this court in Wheatt v. State, 410 So.2d 479 (Ala.Cr.App.1982). See also State v. Werner, 402 So.2d 386 (Fla.1981); Stone v. State, 402 So.2d 1330 (Fla.Dist.Ct.App.1981); Stehling v. State, 391 So.2d 287 Appellant raises several issues concer......
  • State v. Drewry, 6 Div. 290
    • United States
    • Alabama Court of Criminal Appeals
    • November 10, 1987
    ...not make the motion for the benefits of probation or sentence reduction, the defendant is not without a remedy. "In State v. Werner, 402 So.2d 386, 387-88 (Fla.1981), the court held subsection (3) constitutional on its face but indicated that prosecutorial overreaching in a particular factu......
  • State v. Kaufman, 63459
    • United States
    • Florida Supreme Court
    • April 21, 1983
    ...(Fla.1981); State v. Leicht, 402 So.2d 1153 (Fla.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1611, 71 L.Ed.2d 848 (1982); State v. Werner, 402 So.2d 386 (Fla.1981); State v. Benitez, 395 So.2d 514 (Fla.1981).2 The 1979 bill was SB 83 and the pertinent references are: Journal of the House, ......
  • Zarate v. State
    • United States
    • Florida District Court of Appeals
    • April 2, 1985
    ...(Fla.1981); State v. Leicht, 402 So.2d 1153 (Fla.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1611, 71 L.Ed.2d 848 (1982); State v. Werner, 402 So.2d 386 (Fla.1981); State v. Yu, 400 So.2d 762 (Fla.1981), cert. dismissed, 454 U.S. 1134, 102 S.Ct. 988, 71 L.Ed.2d 286 (1982); State v. Benitez......
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