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]

Misdemeanors, Felonies and Common Law Crimes in Florida

Those who do not practice criminal law in the courts of Florida are often confused as to the differences in severity between misdemeanors and felonies, and between differing severity classes within those categories. Very few people understand what a common law crime under Florida law is. A good number of people who read this blog have told me that they do not fully understand the various classes of criminal offenses and how they differ, e.g., the difference in potential punishment between a third degree felony and a first degree felony. This post is meant to serve as a primer on the classes of offenses under Florida law.

In Florida, almost all criminal offenses are divided by severity into the two broad categories of misdemeanors and felonies. A third, very small, category is that of common law crimes which have attributes of each of the other two categories. County courts have original jurisdiction in all misdemeanor cases not cognizable by the circuit courts.[1] Circuit courts have jurisdiction, inter alia, of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged.[2] The circuit court also has original jurisdiction in all cases relating to juveniles except traffic offenses as provided in chapters 316 (State Uniform Traffic Control) and 985 (Delinquency), Florida Statutes, and exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.[3] Juvenile cases are, however, processed separately from adult cases.[4] The Florida Rules of Criminal Procedure and Rules of Evidence apply uniformly to both classes of offenses.

What Is a "Reverse Split Sentence"?

Last week, while giving a group of judges a class on sentencing law, it came to my attention that few of the judges present had ever heard of "reverse split sentencing," which is one of the statutory sentencing options available to Florida judges. Upon further inquiry, I discovered that few prosecutors or defense attorneys had heard of it either. This is unfortunate, because this sentencing option can be very appropriate -- especially in a case where the defendant has little criminal history, restitution owed the victim or victims is substantial, and the court needs a real hammer to get the defendant to comply with the terms of supervision.

A “reverse split sentence” is one whereby the defendant is sentenced to a term of probation which may be followed by a period of incarceration or, with respect to a felony, into community control, as follows:

- If the defendant meets the terms and conditions of probation or community control, any term of incarceration may be modified by court order to eliminate the term of incarceration.[1] A defendant upon whom a reverse split sentence is imposed may petition the sentencing court at any time prior to the start of the incarcerative portion of the sentence with a request to eliminate or reduce that portion of the sentence, but the court is under no obligation to grant such a request.

- If the defendant does not meet the terms and conditions of probation or community control, the court may revoke, modify, or continue the probation or community control as provided in section 948.06. If the probation or community control is revoked, the court may impose any sentence that it could have imposed at the time the defendant was placed on probation or community control. The court may not provide credit for time served for any portion of a probation or community control term toward a subsequent term of probation or community control. However, the court may not impose a subsequent term of probation or community control which, when combined with any amount of time served on preceding terms of probation or community control for offenses pending before the court for sentencing, would exceed the maximum penalty allowable as provided in section 775.082. Such term of incarceration must be served under applicable law or county ordinance governing service of sentences in state or county jurisdiction. This does not prohibit the court from imposing any other sanction provided by law.[2]

Alternative Sentencing: Youthful Offender Downward Departures

A “youthful offender” (YO) is any person who is sentenced as such by the court or is classified as such by the Department of Corrections pursuant to section 958.04.[FN1] There are two ways by which a defendant can become entitled to the benefits of the YO statute. Either the trial court can sentence the defendant as a YO, or the Department of Corrections can designate a defendant who was sentenced as an adult to be a YO.[FN2]

Qualification

Pursuant to section 958.04, F.S., the court may sentence as a YO any person:

(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 985;

(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime that is, under the laws of this state, a felony if the offender is younger than 21 years of age at the time sentence is imposed; and

(c) Who has not previously been classified as a youthful offender under the provisions of chapter 985; however, a person who has been found guilty of a capital or life felony may not be sentenced as a YO under the Youthful Offender Act.

Chemical Castration for Rapists

Chemical castration is the use of hormonal medication used to suppress the sexual drive. It is used mainly by countries as a preventive measure or punishment on people who violate their laws on sexual behavior. The term “chemical castration” is a misnomer: It should be more appropriately called “hormonal androgen depletion” or “anti-hormone treatment.” Its effects are completely reversible. Medroxyprogesterone acetate (MPA), the drug mandated by the Florida Legislature for use in chemical castrations, is more commonly known as Depo-Provera. In men, the drug reduces the production of the hormone testosterone in the testes and the adrenal glands, and, therefore, reduces the level of testosterone circulating through the bloodstream. As testosterone levels drop, so does the putative sex drive in most men. The physiological effects of Depo-Provera thus include temporary diminution of erections and ejaculations and a reduction in sperm count.

Sentencing Multipliers Under the Criminal Punishment Code: Use of Juvenile Priors for the Grand Theft Motor Vehicle Multiplier

There is a lot of misunderstanding about sentencing multipliers under Florida's Criminal Punishment Code, particularly when it comes to the Grand Theft Motor Vehicle multiplier and the use of juvenile priors as predicate offenses.

The Grand Theft Motor Vehicle multiplier is applicable where the primary offense charged is grand theft of a motor vehicle and the defendant's prior record includes three more grand thefts of a motor vehicle. The confusion is usually over whether juvenile priors can be used as predicate offenses, and if so, whether or not there has to have been an adjudication of delinquency. Typical is the following question I received a few days ago from an Assistant State Attorney in the 15th Circuit, reproduced verbatim:

No Death Penalty for Child Rapists

The United States Supreme Court today in a 5-4 opinion in the case of Kennedy v. Louisiana,(1) authored by Justice Kennedy and joined in by Justices Stevens, Souter, Ginsburg and Breyer, ruled that the Eighth Amendment's cruel and unusual punishment clause prohibits states from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the child's death. The Court also ruled that the application of this law to the states under the Fourteenth Amendment renders the Louisiana statute under which petitioner Patrick Kennedy was sentenced to death for the brutal rape of his eight-year-old stepdaughter unconstitutional. As for the death penalty in Florida, however, it will be business as usual.

The facts of Kennedy were compelling: Patrick Kennedy brutally raped his eight-year-old stepdaughter on March 2, 1998 and coached her to lie about it to the police. That morning, the victim was transported by ambulance to Children’s Hospital where she was examined in the emergency room. The victim’s predominate injury was vaginal with profuse bleeding. Her entire perineum was torn and her rectum protruded into her vagina. A pediatric surgeon was called in to repair the damage, which was repaired successfully. However, as a result of pain, the victim had to be fed gallons of stool softener through a tube to permit her to begin defecating again. At trial, the defendant was convicted of aggravated rape and a unanimous jury recommended that Kennedy receive the death penalty, which the sentencing court imposed. He appealed his conviction and sentence and the Louisiana Supreme Court affirmed both, reasoning that the death penalty was proportionate in the circumstances because