Wood v. State, HH-49
| Decision Date | 21 April 1978 |
| Docket Number | No. HH-49,HH-49 |
| Citation | 357 So.2d 1060 |
| Parties | Jerry WOOD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Judith J. Dougherty, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
Wood appeals from a judgment and sentence of the Leon County Circuit Court, entered on his plea of guilty to a charge of possession of cocaine. Section 893.13(1)(e), Florida Statutes (1977). The issue is whether the five-year sentence was lawfully made to run consecutively with a five-year sentence Wood was then serving as a result of his conviction for willfully failing to appear for proceedings in this very case, after having been admitted to bail. Section 843.15, Florida Statutes (1977). We find that the State Attorney violated his plea bargain agreement to recommend a concurrent sentence, that Wood's guilty plea was vitiated, and that the trial court was without authority to impose a consecutive sentence without first having given Wood an opportunity to withdraw his plea.
After plea discussions between Assistant Public Defender Judith Dougherty, Wood's counsel, and Assistant State Attorney James White, Wood appeared before Judge Miner on June 13, 1977, to offer a plea of guilty "with the understanding that there will be a joint recommendation by the State and Defense that the time given on this charge would run concurrently" with his sentence for willful failure to appear. Mr. White confirmed that recommendation in behalf of the state. Judge Miner accepted the plea after inquiring:
The court then ordered a presentence investigation and directed Mr. Mercer, a parole and probation officer who was present, to provide a report within three weeks.
On June 29, parole and probation officer Fred Ingley completed a two-part report of his presentence investigation. His six-page report of "factual material" was disclosed by the court to Wood and his counsel; his five-page "confidential evaluation" was not. Fla.R.Crim.P. 3.713(a), (b). 1 Mr. Ingley's factual report included the following representations concerning recommendations by court and law enforcement officers:
Judy Dougherty (Wood's counsel) stated that there was a co-recommendation between the prosecution and the defense that the subject receive a concurrent sentence to the Failure to Appear case in which he was recently sentenced in the Leon circuit court.
As of the date of dictating this PSI, 6-24-77, this writer has been unable to contact Assistant State's Attorney Jim White reference his recommendations on this instant offense.
Mr. Ingley's recitation of factual material concluded with his certificate that
The above is true and correct to the best of my knowledge and belief.
On July 11, Wood appeared again before Judge Miner for sentencing in the presence of Assistant Public Defender Dougherty and Assistant State Attorney White. Lawyer Dougherty stated:
Your Honor, I hope that under the circumstances the Court feels that it can go along with the recommendation by the state and defense that this sentence . . . run concurrently to the failure to appear sentence, which was for the same offense as he's now before the Court on.
Wood attempted to explain to Judge Miner some of the offenses described in the factual section of Mr. Ingley's presentence report. The court then adjudicated Wood guilty of possession of cocaine and sentenced him to a five-year term to run consecutively with the term he was then serving.
Lawyer Dougherty filed, on August 10, a notice of appeal in Wood's behalf, and only then sought an order for transcripts of the plea and sentence proceedings, which were filed in September. Briefs were submitted in this court on the question of whether the consecutive sentence was vitiated by Assistant State Attorney White's failure or refusal, at the sentencing on July 11, to verify his prior recommendation of a concurrent sentence. The state here argued, among other things, that Assistant Public Defender Dougherty acquiesced at sentencing in the state's change of position.
In the meantime, with the transcripts in hand, lawyer Dougherty went to Judge Miner. He revealed to her, for the first time, the "confidential evaluation" section of Mr. Ingley's presentence report, which thereafter was made a part of this record. There Mr. Ingley had reported, over a similar certificate, that it was "true and correct to the best of my knowledge and belief," that:
In addition to the prosecuting attorney Jim White, another State Attorney, Tony Bajoczky, indicated that he felt this was probably one of the worst individuals he has ever dealt with and hoped the Court would see fit to incarcerate him for as long as is possible for this and any other offense for which the subject might have been or be found guilty.
We can only hope that Mr. Ingley's confidential report was in error in reciting that Assistant State Attorney James White joined Assistant State Attorney Tony Bajoczky's recommendation that Wood be incarcerated "for as long as is possible." Conceivably Mr. Ingley gained an erroneous impression of lawyer White's views through his colleague Mr. Bajoczky, or through other hearsay. But, even assuming that to be true, and reading this incomplete evidence in a light most favorable to the prosecuting authorities and Mr. Ingley, it appears beyond question that Wood's plea of guilty on June 13 was induced by Assistant State Attorney White's recommendation of a concurrent sentence; that lawyer White reneged on his recommendation at the sentencing hearing and refused to do more than stand silent in the face of a direct inquiry concerning his recommendation; that Assistant State Attorney Bajoczky, who knew or should have known of the plea bargain, strongly recommended to Mr. Ingley that Judge Miner be urged to incarcerate Wood for as long as possible; that Mr. Ingley knew or should have known from his colleague Mr. Mercer that Assistant State Attorney White had recommended a concurrent sentence on June 13; that Mr. Ingley nevertheless represented in his factual report that he had been unable to reach Assistant State Attorney White to confirm the joint recommendation for a concurrent sentence, of which lawyer Dougherty advised him; that Mr. Ingley's factual report, which he knew would be furnished Wood's counsel in compliance with Rule 3.713, was therefore calculated to lead the defense to believe that the state's prior recommendation was not withdrawn but was merely unconfirmed by Mr. Ingley; and that Mr. Ingley, knowing that his confidential evaluation would not be furnished to Wood and his counsel, simultaneously conveyed to the court through that device a damning recommendation by Assistant State Attorneys White and Bajoczky that Wood be imprisoned for as long as possible, that is to say, consecutively.
We recognize that Assistant State Attorney White, Assistant State Attorney Bajoczky, Parole and Probation Officers Ingley and Mercer have not had an opportunity to explain their individual roles in this debacle, to challenge the implications of our recital, and to confront and cross-examine each other as sworn witnesses. Yet the picture arising from this record is that the state, through these public officials, deceitfully took an affirmative and conciliatory position to induce Wood's plea of guilty, an inconsistent but ostensibly neutral position when the plea was in hand, and a hostile position through a covert communication to the court. The judgment and sentence will of course be vacated. Crossin v. State, 262 So.2d 250 (Fla.4th DCA 1972).
In these circumstances we need not pause to inquire whether lawyer Dougherty's momentary lapse, in acquiescing in lawyer White's conduct at sentencing without consulting her client, would in other circumstances have validated the result. Neither do we inquire what Judge Miner's duty was when, with Mr. Ingley's confidential report in hand, he heard Mr. White announce at sentencing that the state had no recommendation. It is evident that Judge Miner was troubled by the announcement ("Well, I do not agree"); he apparently broke off further inquiry because lawyer Dougherty acquiesced in Mr. White's retreat from his prior recommendation; and it may well be that, considering Wood's apparent contempt for law and society, Judge Miner would have determined to impose a consecutive sentence regardless of recommendations by the state. But Wood's apparent contempt for the law and its servants does not excuse our deserving it. We can only rejoice that lawyerly persistence by Ms. Dougherty and fair judgment by Judge Miner ultimately prevailed, resulting in the revelation to us of Mr. Ingley's report.
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