Monday, August 3, 2015

Early Termination of Probation of Community Control

Hon. William H. Burgess, III, B.C.S.

Trial courts have unbridled discretion under state law to decide whether or not to terminate a defendant’s probation or community control early.1

Public policy strongly favors early termination of probation and community control where the goals of such supervision have been met,2 and disfavors punitive conditions of probation or community control that would prohibit early termination.  Early termination of supervision is a tool used to encourage good behavior and faithful compliance with the terms of probation or community control.  A policy or practice of no early termination of supervision could result in the absurd situation of a rehabilitated defendant being prohibited from going into court for the opportunity to prove his or her rehabilitation and, if proven, permit the court to put an end to unnecessary expenditures of time, money, and other resources on continued probation that serves no purpose beyond harassment of the defendant or which would be better directed towards defendants who have not been rehabilitated. Such policies and practices do not enhance the image of the state courts in the eyes of the public and may in fact serve to publicly discredit the courts.

Pursuant to section 948.05, Fla. Stat., a court may at any time cause a probationer or offender in community control to appear before it to be admonished or commended, and, when satisfied that its action will be for the best interests of justice and the welfare of society, it may discharge the probationer or offender in community control from further supervision.3  In the case of community control, the trial court also may grant “rollover” (conversion to probation) prior to the expiration of the term of community control, or termination of community control, if the court is satisfied that the defendant has met all conditions.4  Section 948.05 requires the court to respond to the facts and circumstances that develop during the term of supervision:  If the probationer or community controlee has fulfilled his or her obligations and has been a model for supervision, the interests of justice and the wise allocation of scarce resources may require that early termination of supervision be considered.5

State law further facilitates the exercise of this discretion by providing that the Department of Corrections (DOC) may recommend early termination of probation or community control to the court at any time before the scheduled termination date if the probationer or community controlee has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including but not limited to, fines, court costs, and restitution.6  Consistent with public policy, a trial court is not authorized to impose a special condition of supervision that purports to divest DOC of its statutory authority to recommend early termination of supervision.7

Where a trial court imposes a probationary or community control period with special conditions and further offers early termination of that probation or community control upon successful completion of all such conditions, the early termination provision is not self-executing.  If and when the special conditions are completed before the natural expiration of the probationary or community control sentence, either the defendant or DOC must advise the trial court that all such conditions have been satisfied and request early termination.  Once the court has confirmed that all special conditions have been fulfilled it will then terminate the probation or community control.8

A trial judge may not unilaterally declare at sentencing that no early termination of probation or community control will ever be allowed, as such defeats the salutory purpose of section 948.05 and other laws.9  Moreover, a trial judge is not empowered to prevent the circuit court in the future from exercising its authority to discharge a probationer or community controlee under the law.10  Beyond all this, it also is very unlikely that a special “no early termination” term or condition of probation or community control will conform to the requirements of section 948.039 of being reasonably related to the circumstances of the offense committed and appropriate for the offender.11  A “reasonable” term or condition of probation or community control must (1) satisfy one or more of the state’s rationales for allowing supervision, (2) further the goals of supervision, (3) not be impossible or extremely difficult to follow, and (4) be appropriate in light of the crime committed.12  There has to be a reasonable basis for a special term or condition of supervision, and supposition alone cannot be used to justify a restraint on the defendant.13

That being so, there is no statutory or constitutional prohibition precluding a trial court from requiring a defendant to complete a full term of probation or community control.  While a trial court does not have the statutory authority to impose a requirement of “no early termination” of probation or community control that would ban DOC from recommending early termination or preclude successor judges from considering early termination, the sentencing judge is free to express his or her intent that the full period of supervision is the price for the avoidance of prison.  Such precatory terms should not find their way into a judgment and sentence, but a record of the sentencing court’s intent will assist (but not bind) any successor judge faced with a motion for early termination of supervision in knowing what the original sentencing judge had in mind at the time the sentence of probation or community control was imposed.14

Plea agreements do not diminish the statutory authority of the trial court as to early termination of supervision.15  The mere acceptance by the trial court of a plea agreement does not bind the court or DOC to any terms of the agreement purporting to limit their discretion or authority in this regard.16  Stated otherwise, a court is not prohibited from granting a motion to terminate supervision simply because the defendant has entered into a plea agreement that was accepted by the court.  While it is generally true that, where a trial court actively participates in plea negotiations with the defendant and shapes the terms of the defendant’s ultimate plea and sentence, the court is bound to impose a sentence within the terms of the resulting agreement or allow the defendant to withdraw his or her plea, this limitation does not extend to termination of supervision.  A trial court maintains its discretion to grant a motion to terminate probation or community control where the defendant is sentenced pursuant to a plea agreement,17 even where the plea agreement between the State and the defendant purports to provide for no early termination of supervision.

Plea agreements between the prosecutor and the defendant that would prevent DOC from recommending, and the trial court from ordering, early termination of supervision likely violate the constitutional doctrine of separation of powers.  The Florida Constitution vests the legislative power in the state legislature,18 the executive power in the state governor, the judicial power in the state judiciary,19 and the circuit-level prosecuting power in the circuit state attorneys.20  The executive department has the constitutional power to enforce the general law; the state attorney (or statewide prosecutor) is vested with both the power to charge an individual accused of criminal conduct and the discretion to proceed to trial once a criminal action has been filed with the court.  The judiciary has the integral function of resolving criminal actions.  When the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the final disposition of that charge becomes a judicial responsibility.  Once the prosecutor has pursued and obtained a guilty verdict or a plea of guilty or nolo contendere, the executive role in the resolution of the criminal action is limited constitutionally.  The judiciary alone has the power to resolve criminal matters, and while the legislature may prescribe a range of punishment it may not empower the prosecutor to veto a court’s resolution of a criminal matter within that range.21  Attempts to qualify such judicial discretion by conditioning early termination on the prosecutor’s approval fare no better.  The judiciary alone has the power to resolve criminal matters, and a prosecutorial concurrence requirement is, in effect, an executive veto power that unreasonably impedes the judiciary’s power to resolve criminal cases.  The prosecutor does not supervise probation or community control:  Prosecutorial supervision of defendants would be an invasion of the judicial function and the function of DOC, and would inevitably be disruptive of all three entities.  Sentencing is, in the last analysis, a judicial function and the Florida legislature has not delegated final sentencing authority to prosecutors.

Plea agreements are regarded as contracts conferring all of the attendant rights and obligations governed by ordinary principles of contract law, albeit unique contracts in which special due process concerns and adequacy of procedural safeguards obtain.  The freedom of prosecutors and defendants to enter into plea agreements notwithstanding, the application of contract law principles in defense of plea agreements containing “no early termination” terms or conditions is problematic for a variety of reasons.

Contractual provisions are severable, where the illegal portion of the contract does not go to its essence, and, with the illegal portion eliminated, there remain valid legal obligations.  Where the entire contract is illegal, however, severability is not available.22  Thus, when a portion of a contract is void as against public policy, the remainder of that contract may still be enforceable to the extent it is severable from, and not dependent in its enforcement upon, the valid portion.23  A bargain will be declared illegal or unenforceable if the interest in enforcement of a promise or term is clearly outweighed in the circumstances by a public policy against the enforcement of such promise or term, in which case the promise or term will be unenforceable.24

“No early termination” plea agreements require, of necessity, a waiver of the defendant’s right to seek early termination of supervision.  Although anyone may waive the advantage of a law intended solely for his or her benefit, a law established for a public reason cannot be contravened by a private agreement.25  Constitutionally protected rights can be abridged by conditions of probation or community control if they are reasonably related to the probationer’s or community controlee’s past or future criminality or to the rehabilitative purposes of the probation or community control.26  Among the considerations in evaluating such waiver agreements is relative bargaining power of the parties to the agreement and, generally, absent some affirmative indication that the plea agreement was entered into unknowingly or involuntarily, a waiver agreement can be valid and enforceable.27  Plea agreements that contain waivers of an individual’s constitutional or statutory rights can, therefore, be constitutionally permissible but, “[t]he right of waiver is subject to the control of public policy, which cannot be set aside or contravened by any arrangement or agreement of the parties, however expressed.”28

Violation of a “no early termination” provision of a plea agreement, either by the defendant requesting early termination, DOC recommending it, or the trial court granting it, does not automatically entitle the State to recision of the agreement.  When the State believes that the defendant has breached the terms of a plea agreement, due process prevents the State from nullifying the agreement unilaterally and requires the State to comply with Florida Rule of Criminal Procedure 3.170. Pursuant to that rule, whenever a plea agreement requires the defendant to comply with some specific terms, those terms have to be expressly made part of the plea entered into in open court.29  The rule further provides that the State may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with specific terms of a plea agreement.30  The rule also provides that no plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance with the express plea agreement.31

A prosecutor’s use of Rule 3.170 to have a trial court rescind a plea agreement may be to no avail under the law of contracts.  While, at one time, the common law required strict and literal compliance with the terms of a contract, over time this was relaxed under the influence of courts of equity, so that today only substantial compliance with a contract’s terms is generally required.32  As such, the correct standard for determining whether a defendant has breached his or plea agreement is one of substantial compliance.33  In the context of general contract law, a breach is not material unless the non-breaching party is deprived of the benefit of the bargain.  In general, if a party’s nonperformance is innocent, does not thwart the purpose of the bargain, and is wholly dwarfed by that party’s performance, the breaching party has substantially performed under the contract and the non-breaching party is not entitled to rescission.34  Although a sentencing provision is an important component of a plea agreement, severing a sentence provision does not necessarily do violence to the remainder of the agreement.  This is so because the consequences of a plea are collateral to the paramount issue of guilt or innocence.35  As such, it will be a rare occurrence when the State is able to prove that a defendant’s motion for early termination of supervision made after the completion of all other terms and conditions is a material breach of the plea agreement sufficient to warrant recision pursuant to Rule 3.170.

In any event, the authority conferred upon the trial court to terminate probation or community control is a matter of grace36 and the court’s decision to grant or deny a motion for early termination is not appealable.37  The State, in particular, has no right under section 924.07(1)38 or its procedural counterpart Rule 9.140(c)39 to appeal an order granting early termination of probation, regardless of what the parties had agreed to in the initial plea, thus rendering “no early termination” agreements utterly unenforceable as a matter of law.40


1Johnston v. State, — So. 3d —, 2016 WL 6635271 (Fla. 1st DCA 2016).

2E.g., the primary goals of probation are to impose on the offender conditions that must be complied with so that (1) the offender will be rehabilitated and more likely to conform his or her behavior to societal standards in the future; (2) society will be protected from further criminal conduct by the offender; and (3) the rights of the crime victim will be protected. Woodson v. State, 864 So. 2d 512 (Fla. 5th DCA 2004).

3§ 948.05, Fla. Stat.

4§ 948.05, Fla. Stat.; § 948.10(4), Fla. Stat.; § 948.101(2), Fla. Stat.

5Arriaga v. State, 666 So. 2d 949 (Fla. 4th DCA 1996).

6§ 948.04(3), Fla. Stat.; § 948.10(4), Fla. Stat.

7§ 948.04(3), Fla. Stat.; Hopps v. State, 158 So. 3d 698 (Fla. 2d DCA 2015) (trial court erred by imposing a special condition of probation that purports to divest DOC of its authority to recommend early termination of probation); Murphy v. State, 976 So. 2d 1242, 1243 (Fla. 2d DCA 2008) (error for trial court to impose a no early termination of probation condition); Flynn v. State, 736 So. 2d 160 (Fla. 2d DCA 1999) (trial court erred in imposing a special condition of probation which attempts to prohibit DOC from exercising its authority to recommend early termination of probation); Swedish v. State, 724 So. 2d 640 (Fla. 2d DCA 1999) (same); Washington v. State, 686 So. 2d 733 (Fla. 2d DCA 1997) (striking “no early termination consideration” condition of probation); Jones v. State, 666 So. 2d 191 (Fla. 2d DCA 1995) (condition that probationary term could not be terminated early impermissibly attempted to divest DOC of authority to recommend early termination of probation); Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993) (trial judge is not authorized to divest DOC of its authority to recommend early termination of probation).

8Hepburn v. State, 780 So. 2d 326 (Fla. 3d DCA 2001).

99Arriaga v. State, 666 So. 2d 949 (Fla. 4th DCA 1996).

10§ 948.05, Fla. Stat.; Washington v. State, 686 So. 2d 733 (Fla. 2d DCA 1997); Jones v. State, 666 So. 2d 191 (Fla. 2d DCA 1995); Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993) (striking special condition of probation providing that the defendant could not be considered for early termination).

11§ 948.039, Fla. Stat.

12N. Nolan & J. Gobert, The Law of Probation and Parole, § 5:09, at 209-10 (1983).

13See Williams v. State, 182 So. 3d 912 (Fla. 2d DCA 2016).

14See Arriaga v. State, 666 So. 2d 949, 950-51 (Fla. 4th DCA 1996) (Farmer, J., dissenting).

15The trial court is, in all instances, free to reject a proffered plea agreement that it thinks is unjust, unfair, or contrary to public policy or the law. It is preferable from the standpoint of judicial efficiency and fairness to the parties, however, that the trial court address its concerns over terms or conditions of the agreement before imposing sentence, while being careful not to engage in plea negotiations.

16Arizona, which has laws similar to Florida’s, has resolved this issue against binding no early termination plea agreements. See State v. Patel, 160 Ariz. 86, 770 P. 2d 390 (Ct. App. Ariz. 1989) (“We hold that the state and the defendant may not bind the trial court to a fixed period of probation. Such an effort is prohibited by statute, court rule, and public policy. It infringes on the court’s jurisdiction and authority over probationers in general.”).

17Enea v. State, 171 So. 3d 219 (Fla. 5th DCA 2015). Note that the four-page plea agreement in Enea did not contain any express provisions prohibiting Enea from seeking an early termination of probation, and the court’s Order of Probation expressly stated that the court may at any time discharge Enea from further supervision.

18Fla. Const. Art. III, § 1.

19Fla. Const. Art. V, § 1.

20Fla. Const. Art. V, § 17.

21See State v. Ramsey, 171 Ariz. 409, 831 P. 2d 408 (Ct. App. Ariz. 1992).

22Fonte v. AT&T Wireless Services, 903 So. 2d 1019, 1024 (Fla. 4 th DCA 2005).

2317A C.J.S. Contracts § 380 (2016).

245 Williston on Contracts § 12:1 (4th ed. 2016).

25See Ostafin v. State, 564 N.W. 2d 616 (1997) (defendant cannot as part of plea agreements waive good time credits, the purpose of which is to improve prison behavior and thereby improve overall prisoner morale and well being).

26Wiggins v. State, 386 So. 2d 46 (Fla. 4th DCA 1980).

27See U.S. v. Mezzanatto, 513 U.S. 196, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995) (agreement to waive exclusionary provisions of plea-statement rules was enforceable absent any showing that defendant entered agreement unknowingly or involuntarily).

28Charles F. Williams and David S. Garland, American and English Encyclopædia of Law, Vol. XXVIII (Northport, Long Island, New York: Edward Thompson Company, Law Publications 1895), p. 533.

29Fla. R. Crim. P. 3.170(g)(1).

30Fla. R. Crim. P. 3.170(g)(2)(A).

31Fla. R. Crim. P. 3.170(g)(2)(C).

3215 Williston on Contracts § 44:52 (4th ed.) (citations omitted).

33See McCoy v. State, 599 So. 2d 645 (Fla. 1992); U.S. v. Bielak, 660 F. Supp. 818 (N.D. Ind. 1987).

34See U.S. v. Castaneda, 162 F. 3d 832, 836-38 (5th Cir. 1998) (breach of nonprosecution agreement).

35See Lee v. State, 816 N.E. 2d 35, 39 (Ind. 2004).

36State v. M.R.T., 848 So. 2d 467 (Fla. 5th DCA 2003).

37Johnston v. State, — So. 3d —, 2016 WL 6635271 (Fla. 1st DCA 2016); Burgos v. State, 765 So. 2d 967 (Fla. 4th DCA 2000); State v. Folkes, 190 So. 3d 118 (Fla. 4th DCA 2015) (modification of community control conditions did not constitute a sentence and therefore State had no right of appeal); Thompson v. State, 840 So. 2d 352 (Fla. 5th DCA 2003); Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980) (since the authority conferred upon the court by section 948.05 is entirely a matter of grace, an order denying that relief is non-appealable).

38§ 924.07(1), Fla. Stat.

39Fla. R. App. P. 9.140(c).
40LaFave v. State, 149 So. 3d 662 (Fla. 2014) (an order granting a motion to terminte probation is non-appealable).

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