O’Berry v. State, 38 Fla. L. Weekly D1324a (Fla. 2d DCA June 14, 2013):  Held that where State Attorney’s Office makes a promise to recommend a certain sentence to a judge – even on an open plea – and fails to honor that agreement, Defendant is entitled to withdraw the plea, and to use the contractual remedy of specific performance to force the prosecutor to make the recommendation he or she originally agreed to make.  This is a lesson for prosecutors:  stick by your word.  This is also a lesson for defense attorneys:  get it in writing – that can save the day.

In this case, Defendant pled open to the court, and the prosecutor agreed to recommend 40 years in prison, but there was no cap.  The defendant could have been sentenced up to life in prison.

At the sentencing hearing, the prosecutor reneged on the agreement, and asked for life in prison.  Defendant was sentenced to 50 years – essentially 10 years more than what the prosecutor agreed to recommend.

Defendant moved to withdraw the plea under rule 3.170(l).  It was denied, and the Florida criminal appeals court reversed, permitting the defendant to withdraw the plea.  The appeals court held:

[W]hen the State fails to honor a plea agreement, whether it involves a negotiated plea for a specified sentence or a promise to make a nonbinding recommendation, the violation of the agreement is akin to a breach of contract for which the defendant is entitled to seek a remedy. See Tillman v. State, 522 So. 2d 14, 16 (Fla. 1988) (“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.”); Mehl v. State, 958 So. 2d 465, 468 (Fla. 4th DCA 2007) (“[T]he mere appearance of a breach by the state is itself grounds for relief regardless of whether the breach affected the sentence.”); A.D.W. v. State, 777 So. 2d 1101, 1104 (Fla. 2d DCA 2001) (observing that the rules of contract law apply to plea agreements).

What is interesting is that the court noted that when a prosecutor is making a nonbinding recommendation, “[i]mplicit in any such plea bargain, which involves no obligation by the trial court to follow such recommendation, is that the prosecutor will make a reasonable effort in persuading the sentencing judge of the merit of such recommendation.”

The appellate court remedied the problem by using the contractual remedy of “specific performance”, ordering the plea withdrawn and for the State to honor its agreement to make the 40 year recommendation before a different sentencing judge.

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