Early Termination of Probation or Community Control

This article summarizes the law of sentencing pertaining to early termination of probation  or community control in Florida state courts.

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

July 10, 2024

Early termination of supervision is a tool used to encourage good behavior and faithful compliance with the terms of probation or community control.  There is, however, no statutory or constitutional prohibition precluding a trial court from requiring a defendant to complete a full term of probation or community control.

Motion for Early Termination

When presented with a motion for early termination of probation or community control, the court is required to afford the movant procedural due process.  At a minimum, the court must consider the motion and exercise its discretion in granting or denying the motion.  In a case where the parties have entered into a plea agreement that sets forth a specific length of supervision, the court cannot avoid the issue by concluding that it lacks authority to consider the motion.¹

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 where the agreement contains no provision prohibiting or restricting early termination.²

The two major factors for the court to evaluate when considering a motion for early termination of supervision are (1) the conduct of the defendant and (2) the interests of justice.  In this regard, the court has discretion to consider a wide range of circumstances in deciding whether to grant early termination.  In reaching its decision, the court is guided by general punishment issues such as deterrence, public safety, rehabilitation, proportionality, and consistency.  While it is the defendant’s burden to demonstrate the propriety of early termination, early termination does not require exceptional or extraordinary circumstances or exceptionally good behavior.  Unless early termination is prohibited by law, there is a presumption in favor of early termination for a defendant who has satisfied (or substantially complied with) all conditions of supervision, presents no identified risk of harm to the public or victims, is free of court-reported violations of supervision for a substantial length of time, demonstrates the ability to lawfully conduct himself or herself beyond the period of supervision, and who engages in appropriate socially positive activities and receives socially positive support sufficient to convince the court in the totality of the circumstances that the defendant will continue his or her lawful behavior well beyond the period of supervision.

In any event, the authority conferred upon the trial court to terminate probation or community control is a matter of grace³ and the court’s decision to grant or deny a motion for early termination is not appealable.⁴  The state, in particular, has no right under section 924.07(1)⁵ or its procedural counterpart Rule 9.140(c)⁶ to appeal an order granting early termination of probation.⁷

Public Policy

Public policy strongly favors early termination of probation and community control when the goals of such supervision have been met,⁸ and disfavors unnecessary conditions of supervision.⁹  An exception to the public policy favoring early termination of probation or community control is found in subparagraph (2)(f), added to section 948.05(2) in 2023.¹⁰  Pursuant to this new subsection, a probationer or offender in community control who is placed under supervision for committing or attempting, soliciting, or conspiring to commit a violation of any felony offense described in section 775.21(4)(a)1.a. or b., or section 943.0435(1)(h)1.a. (pertaining to sexual predators and sexual offenders), or who qualifies as a violent felony offender of special concern under section 948.06(8)(b) is not eligible for any reduction of his or her term of supervision under § 948.05, Fla. Stat.¹¹

Judicial Discretion

Absent any statutory exception, trial courts have unbridled discretion under state law to decide whether or not to terminate a defendant’s probation or community control early.¹²

Pursuant to section 948.05(1), 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.¹³  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.¹⁴  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.¹⁵

Discretion of the Department of Corrections

State law provides 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.¹⁶

In addition, DOC is authorized by statute to implement a system of graduated incentives to promote compliance with the terms of supervision, encourage educational achievement and stable employment, and prioritize the highest levels of supervision for persons being supervised who present the greatest risk of recidivism, which can result in the mitigation and ultimately even the shortening of the term of probation or community control.¹⁷

As part of the graduated incentives program, DOC may, without leave of court, offer the following incentives to a compliant probationer or offender in community control:

1. Up to 25 percent reduction of required community service hours;

2. Waiver of supervision fees;

3. Reduction in frequency of reporting;

4. Permission to report by mail or telephone; or

5. Transfer of an eligible offender to administrative probation authorized under section 948.013.¹⁸

Pursuant to statutory law, DOC may also incentivize positive behavior and compliance with recommendations to the court to modify the terms of supervision, including recommending:

1. Permission to travel;

2. Reduction of supervision type;

3. Modification or cessation of curfew;

4. Reduction or cessation of substance abuse testing;

5. Early termination of supervision.¹⁹

DOC is also required, without leave of court, to incentivize educational achievement by awarding a compliant probationer or offender on community control with a 60-day reduction of his or her term of supervision for each educational advancement activity he or she completes during the term of supervision.  As used in this context, “educational advancement activity” means a high school equivalency degree, an academic degree, or a vocational certificate.²⁰

DOC is similarly required, without leave of court, to incentivize stable employment by awarding a compliant probationer or offender on community control a 30-day reduction of his or her term of supervision for each period of workforce achievement he or she completes during the term of supervision.  As used in this context, “workforce achievement” means continuous and verifiable full-time employment, for at least 30 hours per week for a six-month period, for which the probationer or offender earns a wage.  The department is required to verify such employment through supporting documentation, which may include, but need not be limited to, any record, letter, pay stub, contract, or other department-approved method of verification.²¹

A probationer or offender in community control who commits a subsequent violation of probation may forfeit any previously earned supervision incentive, as determined to be appropriate by his or her probation officer or community control officer.²²

Mandatory Early Termination

Early termination of probation, or conversion to administrative probation, can be mandatory in certain circumstances:  Except as provided in subsection 948.04(5), for defendants sentenced to probation on or after October 1, 2019, the court, upon motion by the probationer or the probation officer, must either early terminate the probationer’s supervision or convert the supervisory term to administrative probation if all of the following requirements are met:

(a) The probationer has completed at least half of the term of probation to which he or she was sentenced.

(b) The probationer has successfully completed all other conditions of probation.

(c) The court has not found the probationer in violation of probation pursuant to a filed affidavit of violation of probation at any point during the current supervisory term.

(d) The parties did not specifically exclude the possibility of early termination or conversion to administrative probation as part of a negotiated sentence.

(e) The probationer does not qualify as a violent felony offender of special concern under section 948.06(8)(b).²³

Upon making written findings that continued reporting probation is necessary to protect the community or the interests of justice, the court may decline to early terminate the probationary term or convert the term to administrative probation for a probationer who is otherwise eligible under subsection 948.04(4).²⁴  Subsections 948.04(4) and (5) do not apply to an offender on community control.  If an offender on community control is subsequently placed on probation, he or she must complete half of the probationary term to which he or she was sentenced, without receiving credit for time served on community control, before being eligible for mandatory early termination or conversion to administrative probation under section 948.04.²⁵

Conditional and Automatic Early Termination

A trial court can impose supervision that automatically terminates upon the passage of time or upon the satisfaction of certain preconditions, without the need for a formal judicial determination.  An example of automatic termination is where the court places a defendant on probation with a condition that the probation can be terminated if the defendant goes to another state and, once there, calls his or her probation officer.²⁶  Another example of automatic termination is where, in pronouncing sentence, the trial court states, “probation will terminate at the end of five years,” as opposed to stating that “probation may terminate which would make termination permissive.”²⁷  In some circumstances, however, “automatic” termination actually means conditional termination:  Where, for example, a court imposes a condition that probation shall automatically terminate after nine months if restitution is paid in full, and at the nine month mark the amount of restitution has not been determined, the nine-month mark is neither a time limitation on restitution or an automatic termination of probation.²⁸  Similarly, 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.²⁹

No Early Termination Conditions

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 salutary purpose of section 948.05 and other laws.³⁰  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.³¹

When it comes to no early termination conditions in plea agreements that have been accepted by trial courts, the appellate law in Florida is not entirely uniform.

The Second and Fourth District Courts of Appeal have held that 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, nor does a trial court have the authority to prevent a trial court in the future from exercising its authority to discharge the probationer or community controlee.32  This approach has also been applied by the Fifth District Court of Appeals to juvenile court.³³

The Fourth District in 1996, citing Baker v. State,34 held in Arriaga v. State that a trial court does not have the statutory authority to impose a requirement of “no early termination” of probation, that to permit the court to declare at the inception of probation that no early termination will ever be allowed defeats the salutary purposes of section 948.05, and that if the special condition is meaningless and merely precatory in nature it should not find its way into the formal judgment and sentence.³⁵  The dissent, however, expressed the belief that the sentencing judge should be free to express his or her intent that the full period of supervision is the price for the avoidance of prison, and that 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 was imposed.³⁶

While a trial court is forbidden from unilaterally imposing a “no early termination” condition on supervision, the situation changes when that condition is part of a bargained-for disposition and the trial court accepts the agreement.  For example, in 1998 the Third District Court of Appeal upheld a provision of a plea agreement limiting early termination of probation without the consent of the state, wherein the defendant’s 7-year probation term could not be terminated prior to five years of successful completion of probation, and the terms of probation could not be modified without the express consent of the state and the approval of the court.³⁷

In another example, the Fourth District in 2019 affirmed a trial court’s decision that it was prohibited from granting early termination by virtue of a bargained-for no early termination provision in the plea agreement.³⁸  In that case, the defendant had sought early termination of probation in the Palm Beach County trial court.  The trial judge denied the request and in a handwritten form order wrote:

Court finds that [defendant] has been a model probationer and deserving of early termination of probation.  However, the Court is prohibited from granting said motion based on Florida case law because a condition of his plea included a bargained for “No early termination.”  But for said condition, the motion [to] terminate probation would have been granted.

The defendant petitioned the district court of appeal for a writ of certiorari, which was denied per curium.  In a concurring opinion, one of the appellate judges wrote:

Here, [defendant] and the State entered into a valid and binding plea agreement that included a no early termination provision.  Both the State and [defendant] received benefits to the detriment of the other from the plea agreement.  To ignore the no early termination provision and allow [defendant] to terminate probation would allow him to enjoy the benefits of the plea bargain but avoid the burden. (Kuntz, J., concurring)

In comparison, in 2023 the Third District Court of Appeal in State v. Rojas³⁹ held that a “hammer clause” in a plea agreement, whereby the state and the defendant agreed to a substantial downward departure sentence of community control followed by probation, with the express conditions that if the defendant violated supervision he would be sentenced to no less than a certain number of years in prison and that he would not file a motion to mitigate that subsequent sentence, was enforceable and that a subsequent judge did not have the discretion or authority to depart downward from the mandatory prison sentence upon such violation.  The district court specifically held that the parties had entered into a plea agreement that was accepted by the trial court and that, once the trial court formally accepts and ratifies a negotiated plea agreement and imposes a sentence pursuant to the terms of that plea agreement, the trial court is obligated to abide by those terms and, if necessary, to enforce the terms agreed to by the parties and the trial court no longer retains the authority to alter the plea agreement below the mandatory term agreed to by the parties.⁴⁰

“No early termination” provisions in plea agreements that have been accepted by a trial court are, in any event, problematic for a number of reasons.

Neither the state nor the trial court can eliminate or reduce the statutory authority of the Department of Corrections (DOC).  Notwithstanding any no early termination conditions or prohibitions on sentence mitigation, DOC retains its full statutory authority to mitigate, reduce, or terminate probation or community control under certain circumstances.

A special “no early termination” term or condition of probation or community control must conform to the requirements of section 948.039 of being reasonably related to the circumstances of the offense committed and appropriate for the offender.⁴¹  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.⁴²  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.⁴³

Plea agreements between the prosecutor and the defendant that would prevent DOC from recommending, and the trial court from ordering, early termination of supervision may violate the constitutional doctrine of separation of powers.  The Florida Constitution vests the legislative power in the state legislature,⁴⁴ the executive power in the state governor, the judicial power in the state judiciary,⁴⁵ and the circuit-level prosecuting power in the circuit state attorneys.⁴⁶  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.⁴⁷

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.⁴⁸  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.

The most common rationale for upholding “no early termination” conditions that attempt to divest the trial court and DOC of their statutory authority is that a plea agreement is a contract which, when accepted by the trial court, binds the parties and the court to its terms.  The main argument for upholding such a condition is that it would be unfair for a defendant to get the benefit of his or her bargain with the state without having to bear the full consequences of the agreement.

In fact, a plea agreement is not an actual contract, but is a contract analog.  Although contract principle provide a useful framework within which to consider plea agreements, there are limits to the contract analogy.  One important difference is that the analysis of a plea agreement must be conducted at a more stringent level than of a commercial contract because the rights involved are generally fundamental and constitutionally based.  Plea agreements are otherwise 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, but they are not contracts.⁴⁹  For these and other reasons, 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 wrought with challenges.

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.⁵⁰  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.⁵¹  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.⁵²

“No early termination” plea agreements also 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.⁵³  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.⁵⁴  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.⁵⁵  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.”⁵⁶

Plea agreements, like other contracts, are presumed to make both parties better off and do no harm to third parties, and so they are enforceable and enforced.  Contracts contain explicit and implicit terms, especially implicit terms necessary to preclude absurdities in the interpretation of the contract.  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.

“No early termination” conditions do not take into account the possibility that, due to unforeseen supervening circumstances, complete performance of the conditions of supervision may become impracticable of impossible, and revocation of the agreement and returning the defendant and the state to their pre-agreement positions would be unjust.  An example would be where the defendant becomes chronically ill or physically disabled.  Applying contract principles in such a situation, discharge of the defendant may be the appropriate remedy.⁵⁷

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 recission 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.⁵⁸  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.⁵⁹  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.⁶⁰

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.⁶¹  As such, the correct standard for determining whether a defendant has breached his or plea agreement is one of substantial compliance.⁶²  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.⁶³  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.⁶⁴  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 recission pursuant to Rule 3.170.

ENDNOTES

1. See Enea v. State, 171 So. 3d 219 (Fla. 5th DCA 2015).

2. Enea 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.

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

4. Velazquez v. State, 286 So. 3d 361 (Fla. 4th DCA 2019); Johnston v. State, 202 So. 3d 976 (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).

5. See § 924.07(1), Fla. Stat.

6. Fla. R. App. P. 9.140(c).

7. LaFave v. State, 149 So. 3d 662 (Fla. 2014) (an order granting a motion to terminate probation is non-appealable).

8. E.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).

9. See Model Penal Code, Article 10, Sentencing Section 10.02(3)(c) (2024) (community resources should not be used for unnecessary probation).  Note also the following commentary to section 18–7.3 of the 1980 version of the ABA Standards for Criminal Justice:

To require the continuation of unnecessary probation conditions ... has several negative effects:  It overloads the probation department, excludes other offenders from access to the scarce supply of halfway houses and similar institutions, contributes to offender alienation, and probably demoralizes probation personnel, who object to performing a valueless “warehousing” function.  Nor is the unnecessary continuation of probation conditions likely to satisfy the public’s desire to see “just deserts” administered; neither the offender nor the public at large is likely to confuse petty harassment with just punishment.

10. Chapter 2023-146, Laws of Florida.

11. § 948.05(2)(f), Fla. Stat.

12. Johnston v. State, 202 So. 3d 976 (Fla. 1st DCA 2016).

13. See § 948.05(1), Fla. Stat.

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

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

16. See §§ 948.04(3), 948.05(2)(b)5., Fla. Stat.; § 948.10(4), Fla. Stat.

17. § 948.05(1), Fla. Stat.

18. § 948.05(2)(a), Fla. Stat.

19. § 948.05(2)(b), Fla. Stat.

20. § 948.05(2)(c), Fla. Stat.

21. § 948.05(2)(d), Fla. Stat.

22. See § 948.05(2)(e), Fla. Stat.

23. See § 948.04(4), Fla. Stat.

24. See § 948.04(5), Fla. Stat.

25. See § 948.04(6), Fla. Stat.

26. Matthews v. State, 58 So. 3d 929 (Fla. 2d DCA 2011).

27. Gipson v. State, 997 So. 2d 1276 (Fla. 4th DCA 2009); see also Manning v. State, 890 S0. 2d 531 (Fla. 5th DCA 2005) (trial court’s oral pronouncement that probation would automatically terminate if probationer filed proof that restitution and costs of supervision had been paid controlled over court’s subsequent written order which stated that probation may terminate).

28. State v. Maddex, 159 So. 3d 267, 270 (Fla. 4th DCA 2015).

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

30. Arriaga v. State, 666 So. 2d 949 (Fla. 4th DCA 1996); Howard v. State, 367 So. 3d 536 (Fla. 4th DCA 2023).

31. See § 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); Howard v. State, 367 So. 3d 536 (Fla. 4th DCA 2023).

32. See § 948.04(3), Fla. Stat.; Howard v. State, 367 So. 3d 536 (Fla. 4th DCA 2023) (special condition prohibiting early termination of probation without the state’s approval was impermissibly calculated to divest DOC of its authority to recommend early termination of probation and, consequently, to prevent court in the future from exercising its authority to discharge probationer); 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); Arriaga v. State, 666 So. 2d 949 (Fla. 4th DCA 1996) (trial court could not include special condition of probation that defendant may not be considered for early termination of probation, since statute allowed probationer to be brought before court at any time to be commended and possibly discharged from supervision, based on facts and circumstances developed during term 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).

33. See O.P. v. State, 234 So. 3d 853 (Fla. 5th DCA 2018) (in juvenile delinquency case, probation condition that prohibited consideration of early termination should be stricken because under chapter 985 the court retains discretion to terminate probation early and does not allow for the consideration of the release of juvenile who has substantially complied with the terms and conditions of his or her probation).

34. Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993).

35. Arriaga v. State, 666 So. 2d 949, 950 (Fla. 4th DCA 1996) (“The credibility of the judicial system is not enhanced when trial judges make hollow threats.”).

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

37. Garcia v. State, 722 So. 2d 905 (Fla. 3d DCA 1998).

38. Sturgeon v. State, 275 So. 3d 630 (Fla. 4th DCA 2019).

39. State v. Rojas, 356 So. 3d 876 (Fla. 3d DCA 2023).

40. State v. Rojas, 356 So. 3d 876, 884-885 (Fla. 3d DCA 2023).  Note that Arizona, 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. Div. 1 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.”).

41. See § 948.039, Fla. Stat.

42. See Neil P. Cohen, The Law of Probation and Parole, §§ 7:11 and 7:34 (2024).

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

44. Fla. Const. Art. III, § 1.

45. Fla. Const. Art. V, § 1.

46. Fla. Const. Art. V, § 17.

47. See, e.g., State v. Ramsey, 171 Ariz. 409, 831 P.2d 408 (Ct. App. Div. 1 1992) (portion of domestic violence statute requiring prosecutorial concurrence with judge’s decision to defer entry of judgment and place defendant on probation violated separation of powers doctrine of state constitution).

48. But see Sturgeon v. State, 275 So. 3d 630 (Fla. 4th DCA 2019).

49. See, e.g., State v. Francis, 424 P. 3d 156, 159 (Utah 2017) and cases cited therein.

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

51. 17A C.J.S. Contracts § 380 (2016).

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

53. See Ostafin v. State, 1997 ND 102, 564 N.W.2d 616 (N.D. 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).

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

55. See U.S. v. Mezzanatto, 513 U.S. 196, 115 S. Ct. 797, 130 L. Ed. 2d 697, 40 Fed. R. Evid. Serv. 1220 (1995) (agreement to waive exclusionary provisions of plea-statement rules was enforceable absent any showing that defendant entered agreement unknowingly or involuntarily).

56. Charles 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.

57. “Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.”  Restatement (Second) of Contracts § 261 (2024 Update).

58. Fla. R. Crim. P. 3.170(g)(1).

59. Fla. R. Crim. P. 3.170(g)(2)(A).

60. Fla. R. Crim. P. 3.170(g)(2)(C).

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

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

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

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