Thomas v. State
| Decision Date | 06 February 1992 |
| Docket Number | No. 76825,76825 |
| Citation | 593 So.2d 219 |
| Parties | 17 Fla. L. Weekly S91 Milton THOMAS, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Richard L. Jorandby, Public Defender and Susan D. Cline, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
Robert A. Butterworth, Atty. Gen., Joan Fowler, Bureau Chief, Senior Asst. Atty. Gen. and Patricia G. Lampert, Asst. Atty. Gen., West Palm Beach, for respondent.
We have for review Thomas v. State, 566 So.2d 613 (Fla. 4th DCA 1990), based on asserted direct and express conflict with Lee v. State, 501 So.2d 591 (Fla.1987). 1 The issue presented is whether the State has complied with its obligation under a plea agreement where the prosecutor recommended the plea in a manner indicating his lack of support for the agreement or where the presentence investigation (PSI) report contained a sentencing recommendation that exceeded the sentence agreed to by the prosecutor. Thomas contends that the State has not complied with the plea bargain in either case and that he therefore has the right to withdraw his nolo contendere plea. We agree that Thomas should have been permitted to withdraw his plea on either basis, and we quash the decision below.
In accordance with a written plea agreement between Thomas and the prosecutor, Thomas was to plead nolo contendere to battery on a law enforcement officer and the State was to recommend a four-month jail sentence with credit for time served, accompanied by probation and restitution. After the court advised Thomas that it was not obligated to adopt the sentencing recommendation, the court accepted the plea and ordered a PSI report before sentencing.
The probation officer who prepared the PSI report recommended that Thomas be sentenced to three years' imprisonment. When that recommendation was revealed, Thomas moved to withdraw his plea in reliance on this Court's decision in Lee. The State objected, contending that it had complied with the terms of the plea agreement. At a hearing on the motion, the trial court found that Lee was not controlling and denied Thomas permission to withdraw his plea.
At sentencing, the State announced that it would "stand silent" in light of the probation officer's recommendation of a greater sentence. The court advised the State that if it did so, Thomas would be allowed to withdraw his plea. Consequently, the State reluctantly agreed to recommend a four-month jail term, but said its recommendation should not be construed by the court as a reason to depart below the guidelines. Accordingly, the court sentenced Thomas within the guidelines to three years' imprisonment followed by two years' probation, and the district court affirmed on this issue. 566 So.2d 613.
This case is controlled in part by Lee, which addressed the preliminary issue presented here:
[W]hether a promise contained in a plea agreement that the "state" will recommend a given sentence binds only the state attorney's office or whether it also precludes other state agents, such as state law enforcement officers, from making sentencing recommendations contrary to the terms of the agreements.
Lee, 501 So.2d at 592 (emphasis added).
In Lee, the defendant and the prosecutor entered into a plea agreement on a four-count information whereby Lee agreed to plead nolo contendere to possession of cocaine. In exchange, the State pledged to recommend probation, stand silent as to the withholding of adjudication of guilt, and nolle prosequi the three remaining counts. After the court accepted Lee's plea, the Department of Corrections submitted a PSI report in which an agent of the Florida Department of Law Enforcement recommended a sentence of incarceration. Lee moved to withdraw his plea, but the trial court denied the motion, adjudicated Lee guilty, placed Lee on three years' probation, and ordered him to serve sixty days in jail. The district court affirmed, but this Court reversed, explaining that:
[O]nce a plea bargain based on a prosecutor's promise that the state will recommend a certain sentence is struck, basic fairness mandates that no agent of the state make any utterance that would tend to compromise the effectiveness of the state's recommendation.... [I]t matters not whether the recommendation contrary to the agreement is made in open court or whether, as here, it is contained in a PSI report. "The crucial factor is that a recommendation contrary to the state's...
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...Atty. Gen., Daytona Beach, for appellee. GRIFFIN, Judge. We are bound to reverse the appealed judgments on the authority of Thomas v. State, 593 So.2d 219 (Fla.1992). Appellant urges, however, that on remand, based on Tillman v. State, 522 So.2d 14 (Fla.1988), he is entitled to imposition o......
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