Sunday, June 3, 2012

Vacatur of Sentences Obtained by Fraud or Misrepresentation

Under the common law, any court of record had absolute control over its orders, decrees, etc., and could amend, vacate, modify or change them at any time during the term at which rendered. Control now is in the courts during the period allowed by the rules of court, terms (as used in common law) having been abandoned. This restriction does, however, not apply to such orders, judgments or decrees which are the product of fraud, collusion, deceit, mistake, etc. Such may be vacated, modified, opened or otherwise acted upon at any time. This is an inherent power of courts of record, and one essential to insure the true administration of justice and the orderly function of the judicial process. As between the parties any judgment or order procured from any court by the practice of fraud or deception may, in appropriate proceedings, be recalled and set aside at any time, whether entered in a civil case or a criminal case.1




Generally, the power of vacatur is not limited to situations in which affirmative declarations were addressed directly to the bench in open court, but may also include invalidation of a sentence rendered in reliance upon a false out of court statement made by the defendant to a third party where the defendant knows and intends at the time the misrepresentation is made that the sentencing court would rely upon the misrepresentation.2

Vacatur implicates double jeopardy. The guarantee against double jeopardy consists of three separate constitutional protections. It protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.3 The underlying purpose of the double jeopardy clause is to avoid subjecting the defendant to repeated embarrassment, expense, anxiety, and insecurity.4 In short, the defendant at some point must be entitled to rely on the finality of the court’s action. A sentence does not, however, have the qualities of constitutional finality that attend an acquittal.5

The Double Jeopardy Clause, however, respects only the defendant’s legitimate expectations as to sentence length, and the defendant’s legitimate expectations of finality are not defeated by an increased sentence on appeal any more than are the expectations of the defendant who is placed on parole or probation that is later revoked.6 For the purpose of determining the legitimacy of a defendant’s expectations, courts draw a distinction between one who intentionally deceives the sentencing authority or thwarts the sentencing process and one who is forthright in every respect. Whereas the former will have purposely created any error on the sentencer’s part and thus can have no legitimate expectation regarding the sentence thereby procured, the latter, being blameless, may legitimately expect that the sentence, once imposed and commenced, will not later be enhanced.7

In federal practice, vacatur is applicable in the situation in which a misrepresentation is contained in papers filed with the court by an attorney where the defendant in whose behalf they are submitted knew of the falsity and failed to correct the misrepresentation or advise the court or his or attorney thereof.8 In terms pf sentencing, where the original sentence was affected by some affirmative act on the part of the defendant, a trial court may resentence a defendant to a longer sentence, or sentence the defendant in a different manner, than the sentence originally imposed. The basic premise is that a court must be able to sentence a defendant upon accurate information, and when the sentence imposed is based upon fraudulent information provided by the defendant, the court has the inherent power to correct that sentence.9

A defendant’s purposeful failure to reveal information which he or she knows would engender a different judgment can be as much a fraud on the court as is an affirmatively stated falsehood intended to conceal such dispositive information. Where, for example, a defendant intentionally falsely states his or her identity, knowing that the sentence to be imposed would be lower than a sentence which would have been imposed had his or her true identity been revealed (e.g., because of the absence of his or her prior criminal history), when the falsity of the defendant’s statements are revealed, the trial court may resentence the defendant and impose a correct sentence. This is because a defendant in such a situation has no legitimate expectation of finality in the sentence originally imposed and there is no double jeopardy prohibition against subsequent imposition of a correct sentence.10 It is also because a court must be able to sentence a defendant upon accurate information.

While the general rule in Florida is that once a defendant has begun to serve his or her sentence, the judge may not recall that defendant and resentence him or her to an increased term, there are exceptions to the rule that are consistent with the court’s inherent power.11 The rule of vacatur has been extended to permit courts to vacate the granting of a defendant’s Rule 3.800(a) motion that was based on false or incomplete information, upon the State’s timely motion for rehearing, and to impose a greater sentence than was the result of granting the defendant’s motion without violating double jeopardy prohibitions.12

Vacatur of final discharges in Florida courts has been limited to situations of extrinsic fraud, except where extrinsic fraud is perpetrated against a criminal defendant. A final order procured by fraudulent testimony against a criminal case is deserving of no protection, and due process requires that the defendant be given every opportunity to expose the fraud and obtain relief from it.13 Otherwise, only extrinsic fraud constitutes fraud on the court; intrinsic fraud is insufficient to set aside a final order.14 A final order of discharge affected with intrinsic fraud such as to render it void ab initio may therefore be set aside because it is of no force and effect from its inception.15

Where the defendant is represented by counsel at sentencing, misrepresentation on the part of the defendant implicates the ethical duties and responsibilities of the defense attorney toward the tribunal. The Rules Regulating The Florida Bar provide, inter alia, that in the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 4-1.6 (Confidentiality of Information).16 A lawyer is thus required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.

Subdivision (b) recognizes that substantive law may require a lawyer to disclose certain information to avoid being deemed to have assisted the client’s crime or fraud. The requirement of disclosure created by this subdivision is, however, subject to the obligations created by Rule 4-1.6. Under Rule 4-3(4), however, a lawyer shall not knowingly permit any witness, including a criminal defendant, to offer testimony or other evidence that the lawyer knows to be false, and is required under the rule to inform the tribunal of all material facts known to the lawyer.17

A criminal defense counsel who learns that his or her client, the defendant, is proceeding under a false name may, nonetheless, not inform the court of this fact due to the attorney-client privilege, the client’s constitutional right to effective assistance of counsel, or the client’s constitutional privilege against self-incrimination. The attorney, however, may not assist the client in perpetrating or furthering a crime or a fraud on the court.18 A defense lawyer also has no obligation to disclose a client’s record of prior convictions in order to prevent a court from imposing a sentence on the basis of incomplete or inaccurate information about the client’s record, provided that neither the defense lawyer nor the defendant affirmatively misrepresented to the court that the defendant had no prior record.19


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Footnotes

1 State v. Burton, 314 So. 2d 136, 138 (Fla. 1975) (vacatur of order for new trial granted on basis of fraudulent affidavit); Booker v. State, 503 So. 2d 888 (Fla. 1987) (an order procured by fraud upon the court, including an order denying a motion for post-conviction relief, may be set aside at any time).

2 See, Lockett v. Juviler, 65 N.Y.2d 182, 490 N.Y.S.2d 764, 480 N.E.2d 378 (1985) (vacatur of sentence where court accepted defendant’s plea of not responsible by reason of mental disease or defect in light of psychiatric expert’s opinion that defendant suffered from post-traumatic stress syndrome, which opinion was based upon defendant’s false representation that he had served in combat during the Vietnam War).

3 North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969).

4 Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 223-24, 2 L. Ed. 2d 199 (1957).

5 United States v. DiFrancesco, 449 U.S. 117 at 132, 134, 101 S. Ct. 426 at 434, 436, 66 L. Ed. 2d 328 (1980).

6 United States v. DiFrancesco, 449 U.S. 117 at 137, 101 S. Ct. 426 at 437, 66 L. Ed. 2d 328 (1980)

7 United States v. Jones, 722 F.2d 632 (11th Cir.1983); see also, United States v. Bishop, 774 F.2d 771, 775 (7th Cir. 1985) (“A court must be able to sentence a defendant upon accurate information and when the sentence imposed is based upon fraudulent information provided by the defendant, the court has the inherent power to correct that sentence.”).

8 See, United States v. Bishop, 774 F.2d 771 (7th Cir. 1985) (on motion to modify sentence defendant failed to advise that state court’s sentence for which defendant was seeking concurrent credit had previously been substantially reduced).

9 United States v. Bishop, 774 F.2d 771 (7th Cir. 1985).

10 Goene v. State, 577 So. 2d 1306 (Fla. 1991) (a trial court may resentence to a greater term a defendant who, because he or she affirmatively misrepresented his or her identity, was originally sentenced pursuant to an inaccurate scoresheet).

11 See, e.g., Smith v. Brown, 135 Fla. 830, 185 So. 732 (Fla. 1938) (defendant adjudged guilty of larceny of automobile and sentenced to serve six months in county jail; during same term of the court, sentence revoked and annulled and defendant temporarily discharged on the basis of physician’s representation that removal from the jail was necessary to save defendant from pneumonia; one year later, defendant again brought before court and sentenced to serve two years in state prison under same conviction); see, also, State ex rel. Rhoden v. Chapman, 127 Fla. 9, 172 So. 56 (Fla. 1937) (where court vacates sentence at request or with consent of convicted defendant at same term at which sentence was imposed, and defers imposition of new sentence to subsequent term to which case is continued, during which time defendant is released on bond, court may, at subsequent term, impose new sentence on original conviction, even though greater or materially different in effect from first sentence).

12 Loremus v. State, 10 So. 3 190 (Fla. Dist. Ct. App. 4th Dist. 2009).

13 State v. Glover, 564 So. 2d 191 (Fla. Dist. Ct. App. 5th Dist. 1990).

14 Thompson v. Crawford, 479 So. 2d 169 (Fla. Dist. Ct. App. 3d Dist. 1985), citing DeClaire v. Yohanan, 453 So. 2d 375, 377 (Fla. 1984).

15 Driscoll v. State, 538 So. 2d 1283 (Fla. Dist. Ct. App. 1st Dist. 1989).

16 Rule 4-4.1 (Truthfulness in Statements to Others); Rule 4-1.6 (Confidentiality of Information).

17 Rule 4-3.3 (Candor Towards the Tribunal); see also, Ethics Opinion 75-19, The Florida Bar (March 15, 1977).

18 Ethics Opinion 90-6, The Florida Bar (Oct. 1, 1991).

19 Ethics Opinion 86-3, The Florida Bar (Dec. 15, 1986); Mehan v. State, 397 So. 2d 1214 (Fla. Dist. Ct. App. 2d Dist. 1981) (where defendant would have subjected himself to longer imprisonment by testifying to prior convictions, defendant retained his right against self-incrimination during habitual offender sentencing proceeding; thus, trial court erred when it found defendant in contempt for exercising his constitutional right to refuse to answer question regarding such alleged convictions).

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