Defendant Jones strikes a plea bargain for a 30-month sentencing cap, including both prison and probation. The judge signs the written plea agreement and schedules sentencing. Complying with the plea agreement, the defendant converts his appearance bond to restitution for the alleged victims. At sentencing, the defendant has a different lawyer and judge. No one mentions the plea agreement, and the judge imposes a split sentence of 20 months in prison plus 20 months on probation, exceeding the 30-month cumulative cap. Defense counsel files a notice of appeal.
Defendant Barnes is party to a plea agreement that makes no mention of a fine. The judge signs the agreement, but at sentencing adds a $1,000 fine to the negotiated sentence. Again, no one complains, and the case goes to appeal.
Can either Jones or Barnes get relief from the part of his sanction that exceeds the plea agreement? At this point the answer is no, at least not during the direct appeal. Under recent precedent, defendants or their lawyers can raise this type of issue on appeal only by first moving to withdraw the plea within 30 days of sentencing under Fla. R. Crim. P. 3.170(1).
This development is a setback for defendants, their lawyers, and the criminal justice system. First, it forces a defendant who wants only fulfillment of his plea to take the risky, unsatisfying step of moving to withdraw it. Second, it places the onus of moving to withdraw the plea on the same attorney who failed to recognize that the sentence exceeded the plea agreement. Third, it undermines recent rule amendments giving defendants the opportunity to raise and preserve sentencing issues during the appeal via Fla. R. Crim. P. 3.800(b)(2). Nonetheless, pending a possible change in the law, trial counsel must ensure that the sentencing judge understands the complete terms of the plea agreement and does not unknowingly go beyond it. Failing that, counsel should consult defendants on whether to raise the issue after sentencing via a motion to withdraw the plea, at the risk of losing the benefit of the plea bargain.
In this article, the author will explain how the law in this area arose from the tension of the recently erected Rules 3.170(1) and 3.800(b), discuss its effect on trial counsel, suggest the appropriate role for each of the new rules on sentences exceeding plea agreements, and offer a clarifying amendment to bring these rules into better balance.
Sentencing Appeals Reform: Shifting the Burden
In 1996, the legislature passed the Criminal Appeals Reform Act (CARA), which required that sentencing errors be preserved in the trial court before they can be raised on appeal.(1) Previously, appellate courts entertained sentencing errors raised by defendants for the first time on appeal. The rationale was that, unlike trial errors which usually can be corrected only by a new trial, a sentencing error is easily fixed by a simple remand, and shouldn't be foreclosed because it wasn't presented to the trial court.(2)
The legislature's abrogation of this common-law rule prompted the Florida Supreme Court to give defendants an opportunity after sentencing to seek correction of sentencing error at the trial level, and thereby preserve the issue for appeal. The court initially authorized defendants to file a motion to correct sentencing error under Fla. R. Crim. P. 3.800(b) before the notice of appeal.(3) Recognizing that errors sometimes go unrecognized until the appeal, which is often handled by different counsel, the court then provided that a defendant could also move to correct the sentencing error before the first brief is filed in the appeal.(4) In Maddox v. State, 760 So. 2d 89 (Fla. 2000), the court gave notice of its strong preference for use of new Rule 3.800(b)(2), stating that for those sentenced when the new rules were in effect, "we anticipate that the interests of justice should be served by the ability of appellate counsel to first raise the issue in the trial court prior to filing the first appellate brief." Id. at 98. District courts have...