Consequences of a Defendant's Failure to Abide by a Plea Agreement

The legal consequences of a defendant’s failure to abide by a plea agreement are profound and well-defined under Florida law.

Defendants who freely and voluntarily enter into a plea agreement with the State are required to abide by the terms of that agreement; if they do not, the State can move under Rule 3.170(g) to have the court vacate the plea and corresponding sentence.[1] Once a defendant reneges on the plea agreement, the State has the option of withdrawing from the agreement, and either going to trial or seeking a new agreement.[2] If a criminal defendant does not feel so bound by the terms of a plea agreement that he or she will comply with it, then the State is likewise not bound.[3]

In McCoy v. State,[4] the Florida Supreme Court prescribed the procedure to be used when a defendant fails to abide by his plea agreement after the imposition of sentence. This procedure was then adopted as Fla. R. Crim. P. 3.170(g), titled “Vacation of Plea and Sentence Due to Defendant’s Noncompliance.”[5]

The provisions of Rule 3.170(g) are as follows: Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered into in open court.[6] Specific clarifications of a plea agreement made during the course of a plea colloquy become part of the agreement for purposes of its enforcement.[7] Unless otherwise stated at the time the plea is entered:

– The State may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with the specific terms of a plea agreement.[8] The 60-day time limit for filing a motion to vacate a plea and judgment is not jurisdictional, however, because the rule permits the time for filing to be altered: a jurisdictional rule cannot be altered by the court or agreement of the parties. This means that failure on the part of the defendant to raise any objection to the timeliness of such a motion, where the time for filing has not previously been altered, constitutes waiver of such an objection.[9] Where the State moves after 60 days to vacate the plea and the defense objects to the motion as being untimely, the defense has the burden of showing that vacating the plea is banned by the doctrine of laches.

The equitable defense of laches exists where there has been an unexplainable delay of such duration or character as to render the enforcement of an asserted right inequitable and is appropriate when a party is aware of his or her rights but fails to act.[10] For laches to apply, the party asserting the right must have knowledge, or the means of knowledge of his or her right, or the facts which created his or her cause of action, but nonetheless fail to timely assert it. So long as there is no knowledge of the wrong committed and no refusal to embrace an opportunity to ascertain the facts, there can be no laches. Laches thus cannot be imputed to one who has been justifiably ignorant of the facts creating his or her cause of action, and who has therefore failed to assert it. After the facts have become known to a party, he or she must use reasonable diligence to enforce his or her right. Actual knowledge is generally a prerequisite to applying the doctrine of laches.[11] Where one has only constructive notice, laches must be predicated on an intentional neglect to make inquiry, rather than mere carelessness to do so.[12]

A finding of laches in a criminal case requires a showing of both lack of due diligence on the part of the person bringing the claim and prejudice to the person against whom the claim is being made.[13] Delay, standing alone, is not enough.[14] The true test to apply laches is whether or not the delay has resulted in injury, embarrassment, or disadvantage to any person and particularly to the person against whom relief is sought.[15] The delay required to render the doctrine of laches available must have been such as practically to preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, and thus make the doing of equity either doubtful or impossible, as through loss or obscuration of evidence of the transaction in issue; or where there must have occurred in the meantime a change in conditions that would render it inequitable to enforce the right asserted.[16] Application of the doctrine of laches depends on the circumstances of each case and often involves factual issues that are not properly resolved without an evidentiary hearing.[17]

– When a motion is filed pursuant to Rule 3.170(g)(2)(A), the court is required to hold an evidentiary hearing on the issue unless the defendant admits noncompliance with the specific terms of the plea agreement.[18] This evidentiary hearing is called a Rule 3.170(g) non-compliance hearing.

– No plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance with the express plea agreement.[19] This means that, in the absence of an admission or stipulation by the defendant, the evidentiary hearing conducted by the court must address the matter of willfulness on the part of the defendant, as where timely appearance for sentencing is made a condition of the plea agreement and the defendant fails to appear for sentencing.[20]

– When a plea and sentence is vacated pursuant to Rule 3.170(g), the cause has to be set for trial within 90 days of the order vacating the plea and sentence.[21]

Defendants who seek to avail themselves of the salutary upside of a substantial plea agreement do not have the right to make unilateral modifications to the agreement.[22] The double jeopardy clause does not protect a defendant from reprosecution or resentencing if the defendant willfully refuses to perform a condition of a plea bargain.[23] When a court finds non-compliance, the only option for the court is to vacate the plea and sentence. A court may not unilaterally increase a defendant’s sentence for non-compliance with the plea agreement.[24]

Where, however, the State does not reach a clear understanding with the defendant on what it would receive and fails to take routine steps necessary to protect its interests, a lawful sentence imposed on the defendant may not be vacated or increased.[25] Note that, in any event, the State has the burden of putting on evidence and proving noncompliance with a specific term of a plea agreement before the court can void it.[26]

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[1] Brenner v. State, 337 So. 2d 1007 (Fla. Dist. Ct. App. 3d Dist. 1976), cert. denied, 348 So. 2d 944 (Fla. 1977) (attempt to renege on agreement to pay proportional share of costs of investigation as part of negotiated plea).

[2] Forsythe v. State, 840 So. 2d 440 (Fla. Dist. Ct. App. 4th Dist. 2003); cf., Latiif v. State, 787 So. 2d 834 (Fla. 2001); Gray v. State, 774 So. 2d 809 (Fla. Dist. Ct. App. 5th Dist. 2000); Parker v. State, 767 So. 2d 532 (Fla. Dist. Ct. App. 5th Dist. 2000); see also, Capio v. State, 765 So. 2d 853 (Fla. Dist. Ct. App. 5th Dist. 2000).

[3] See, Jolly v. State, 392 So. 2d 54 (Fla. Dist. Ct. App. 5th Dist. 1981).

[4] McCoy v. State, 599 So. 2d 645 (Fla. 1992).

[5] See, Amendments to Florida Rules of Criminal Procedure 3.170 and 3.700, 633 So. 2d 1056 (Fla. 1994).

[6] Fla. R. Crim. P. 3.170(g)(1).

[7] Metellus v. State, 817 So. 2d 1009 (Fla. Dist. Ct. App. 5th Dist. 2002) (failure to testify in an associate’s trial), approved 900 So. 2d 491 (Fla. 2005); Deramus v. State, 652 So. 2d 1245 (Fla. Dist. Ct. App. 5th Dist. 1995).

[8] Fla. R. Crim. P. 3.170(g)(2)(A).

[9] Metellus v. State, 900 So. 2d 491 (Fla. 2005).

[10] Ticktin v. Kearin, 807 So. 2d 659 (Fla. Dist. Ct. App. 3d Dist. 2002) (laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party).

[11] 30A C.J.S. Equity § 158.

[12] Anderson v. Northrop, 30 Fla. 612, 12 So. 318 (Fla. 1892).

[13] See, State v. Lindo, 863 So. 2d 1237 (Fla. Dist. Ct. App. 4th Dist. 2003) (defendant’s notion to vacate plea brought within 2 years of time he had or should have had knowledge of the threat of deportation based on plea was timely).

[14] Baker v. Baker, 920 So. 2d 689 (Fla. Dist. Ct. App. 2d Dist. 2006).

[15] Baker v. Baker, 920 So. 2d 689 (Fla. Dist. Ct. App. 2d Dist. 2006); Stephenson v. Stephenson, 52 So. 2d 684, 686 (Fla. 1951); Lightsey v. Lightsey, 150 Fla. 664, 8 So. 2d 399, 400 (Fla. 1942).

[16] Stephenson v. Stephenson, 52 So. 2d 684, 686 (Fla. 1951).

[17] See, Bain v. State, 9 So. 3d 723 (Fla. Dist. Ct. App. 2d Dist. 2009).

[18] Fla. R. Crim. P. 3.170(g)(2)(B).

[19] Fla. R. Crim. P. 3.170(g)(2)(C).

[20] See, Breland v. State, 951 So. 2d 74 (Fla. Dist. Ct. App. 1st Dist. 2007).

[21] Rule 3.170(g)(2)(D).

[22] McFord v. State, 877 So. 2d 874 (Fla. Dist. Ct. App. 3d Dist. 2004); see, Frazier v. State, 697 So. 2d 944 (Fla. Dist. Ct. App. 3d Dist. 1997) (a party who reaps the benefits of the agreement must be held to its detriments).

[23] Metellus v. State, 900 So. 2d 491 (Fla. 2005).

[24] Spain v. State, 849 So. 2d 340 (Fla. Dist. Ct. App. 2d Dist. 2003) (trial court’s increase of defendant’s sentence after defendant violated terms of cooperation agreement with State reversed for lack of jurisdiction).

[25] See, State v. Acosta, 506 So. 2d 387 (Fla. 1987) (defendant charged with trafficking in cocaine and conspiracy to traffic in cocaine and facing two 15-year minimum mandatory sentences entered into agreement with State under which he agreed to provide substantial assistance in the form of a statement about the drugs; after the State dropped one charge and agreed to a reduced sentence of seven years on the other, the defendant told prosecutors that he had found the drugs on the street).

[26] Neeld v. State, 977 So. 2d 740 (Fla. Dist. Ct. App. 2d Dist. 2008) (defendant picked up new arrest prior to sentencing).