Tillman v. State, 68506
| Citation | 13 Fla. L. Weekly 194,522 So.2d 14 |
| Decision Date | 10 March 1988 |
| Docket Number | No. 68506,68506 |
| Parties | 13 Fla. L. Weekly 194 Gary L. TILLMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | United States State Supreme Court of Florida |
James Marion Moorman, Public Defender and Douglas S. Connor, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
Gary Tillman brings this appeal from a judgment of conviction for first degree murder and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons which follow we affirm the conviction but remand this case for a new sentencing hearing before a new judge and jury.
Pursuant to a plea agreement, Tillman pled guilty to first-degree murder. In return, the state agreed not to present any evidence in aggravation other than that which tended to prove that the murder was especially heinous, atrocious, or cruel, and that the capital felony was committed by a person under sentence of imprisonment. Nonetheless, it is evident from the record that the prosecution put evidence before the sentencer that was beyond the scope of this agreement.
Our decision in this case is controlled by the United States Supreme Court's opinion in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In that case, a New York prosecutor entered into a plea agreement with the defendant whereby the defendant would plead guilty to two misdemeanors, and the prosecutor would not make any sentence recommendation. In the interim between the plea agreement and the sentencing, the prosecutor who made the deal retired, and a new one was appointed to replace him. Unaware of the agreement, the new prosecutor recommended the maximum sentence, which the judge accepted.
As in this case, the judge in Santobello informed the attorneys that he was not at all influenced by the improper recommendation. The United States Supreme Court held that "when a plea rests to any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262, 92 S.Ct. at 499. The Court noted that it was of no matter that the judge stated on the record that he would not be influenced by the inadvertent breach of the agreement. The mere breach of the agreement, regardless of the influence that breach would carry, or whether it was an intentional breach, was cause for remand.
In Santobello, the Court remanded the case to state court to determine the appropriate remedy, plea withdrawal or specific performance of the agreement. We are faced with a similar decision. The record discloses that the prosecution introduced evidence beyond what was agreed upon by the parties. This mere breach, no matter how slight, or whether the judge was influenced by it, is grounds for reversal. A defendant agrees to plead guilty based specifically on the agreement he or she has made with the state. Any breach of that agreement by the state renders the plea involuntary, as the plea is based on an agreement that was not fulfilled.
At trial, Tillman made no motions to withdraw the guilty plea, despite knowledge that the agreement had been breached. While he did repeatedly object to the introduction of evidence beyond what the agreement specified, at no time, until this appeal, did Tillman ever move to withdraw that plea. Accordingly, we cannot allow him to do so now. Rather, we must remand this case for a new sentencing proceeding. In an abundance of caution, in order to avoid even the remote possibility that the trial judge could have been influenced by the inadmissible evidence, we order that the proceeding be conducted before a new judge, and pursuant to the dictates of the plea agreement.
Tillman further alleges error in the impaneling of the sentencing jury. That issue involves the difficult question of whether the trial judge conducted a proper inquiry into Tillman's objections that the state used peremptory strikes against prospective jurors solely on the basis of race. During the jury selection phase of the proceedings, the state struck two jurors who, like Tillman, are black. Defense counsel made no objections at this point. Upon the state's exercise of the third peremptory challenge to excuse the next black juror, counsel asked the court to note for the record that it appeared that the state was systematically striking blacks. Without inquiring of the prosecutor as to why the strikes were being exercised, the judge expressed his own reasons why the jurors could be excluded, notwithstanding race.
Upon the exercise of a peremptory challenge to excuse a fourth black juror, defense counsel again moved for a response from the prosecutor stating valid reasons for exclusion. The prosecutor then gave facially valid reasons for excusing the fourth juror. While excusing that juror, the trial judge did not rule as to the motions regarding the excusal of the previous three black jurors.
This Court, in State v. Neil, 457 So.2d 481 (Fla.1984), delineated the proper procedure a trial court must follow when faced with a challenge to the use of peremptory strikes based solely on race. In Neil, the trial court ruled that the state did not have to explain why it had struck all three black people who had been questioned to that point. This Court reversed that ruling, holding that when a party timely objects to the other party's use of its challenges, the objecting party shows that the strikes were used against members of a distinct racial group, and there is a strong likelihood that they have been challenged solely because of their race, then the burden shifts to the striking party to "show that the questioned challenges were not...
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