State v. Herrera-Fernandez , 271 So. 3d 1124 ( 2019 )

Third District Court of Appeal
State of Florida
Opinion filed March 20, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1481
Lower Tribunal No. 15-2609B
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The State of Florida,
Appellant,
vs.
Jaime Herrera-Fernandez,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Michael A.
Hanzman, Judge.
Ashley Moody, Attorney General, and Melissa Roca Shaw, Assistant
Attorney General, for appellant.
Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Chief Assistant
Public Defender, and James Odell, Assistant Public Defender, for appellee.
Before EMAS, C.J., and SALTER, J., and LEBAN, Senior Judge.
PER CURIAM.
Affirmed. See State v. Leggett, 792 So. 2d 646 (Fla. 3d DCA 2001); State
v. Aguilar, 775 So. 2d 994 (Fla. 3d DCA 2000).
2
State v. Jaime Herrera-Fernandez
3D17-1481
EMAS, C.J., specially concurring.
How many legs does a dog have if you call his tail a leg?
Four. Saying that a tail is a leg doesn't make it a leg.
- Abraham Lincoln
INTRODUCTION
The State appeals from a judgment and sentence imposed after the defendant
accepted the trial court’s below-guidelines plea offer.1 The State contends that the
trial court did not have the authority to offer such a plea because the prosecutor’s
“invitation for a counteroffer” was not a below-guidelines plea offer. We have
affirmed this judgment and sentence with a citation to State v. Leggett, 792 So. 2d
646 (Fla. 3d DCA 2001) and State v. Aguilar, 775 So. 2d 994 (Fla. 3d DCA 2000),
recognizing the outcome is controlled by the well-established case law that plea
agreements in criminal cases are generally governed by principles of contract law.
See Churchill v. State, 219 So. 3d 14 (Fla. 2017); Gonzalez v. State, 789 So. 2d
1091 (Fla. 3d DCA 2001); State v. Frazier, 697 So. 2d 944 (Fla. 3d DCA 1997);
Garcia v. State, 722 So. 2d 905, 907 (Fla. 3d DCA 1998) (holding: “A plea
1 I use the terms “sentencing guidelines” and “below-guidelines” offer for ease of
reference, recognizing that because this case arose in 2015, the technically proper
reference is to the “criminal punishment code” and “below criminal punishment
code scoresheet” offer. See Fla. R. Crim. P. 3.704 (creating “The Criminal
Punishment Code” for offenses occurring on or after October 1, 1998 and replacing
the Sentencing Guidelines provisions of rules 3.701-3.703).
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agreement is a contract and the rules of contract law are applicable to plea
agreements”).
And while that general legal proposition is unremarkable, the context in
which this particular plea offer arose is remarkable. The actions of the prosecutor
suggest an ill-fated attempt to prevent the trial judge from becoming involved in
plea negotiations. There is a correct method and an incorrect method for
accomplishing such an objective. I write to address problems that may arise when
the incorrect method is followed, in the hopes such method gains neither
momentum nor popularity.
FACTUAL BACKGROUND AND ANALYSIS
The relevant facts of this case are straightforward: Herrera-Fernandez and
two co-defendants were charged with trafficking in cocaine. Based on the amount
of cocaine alleged to be involved, the three defendants each faced a mandatory
minimum sentence of fifteen years in prison. See § 893.135(b)1.c., Fla. Stat.
(2015). Independently, under the sentencing guidelines scoresheet, Herrera-
Fernandez faced a minimum sentence of 124.5 months in prison.
The two co-defendants accepted plea offers in which the State waived the
15-year mandatory minimum sentence. One co-defendant received a six-year
sentence; a second co-defendant received a 364-day county jail sentence.
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About a year before trial, the prosecutor extended to Herrera-Fernandez a
plea offer of sixty months in prison—an offer that waived the 15-year mandatory
minimum and was below the minimum 124.5-months at the bottom of the
guidelines. Herrera-Fernandez rejected this plea offer, but later advised the trial
court he was willing to plead guilty if the court offered a more favorable sentence
than that offered by the State. By this point, however, the prosecutor had already
withdrawn its sixty-month offer, and the trial court correctly advised Herrera-
Fernandez that, as a result, the court did not have the authority to extend a below-
guidelines offer2 or an offer below the 15-year mandatory minimum. See State v.
Kelly, 147 So. 3d 1061, 1063 (Fla. 3d DCA 2014) (explaining that only the State
Attorney has the authority to waive a mandatory minimum sentence). See also
State v. Malloy, 23 So. 3d 1292 (Fla. 3d DCA 2010) (reversing where the State’s
plea offer was withdrawn before the trial court made its own below-guidelines
offer); State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008) (noting: “Had the State's
downward departure offer remained open, then the trial court could have accepted
the defendant's plea and imposed an even greater downward departure”).
2 This case does not involve the trial court’s authority to unilaterally impose a
downward departure sentence under sections 921.002 and 921.0026, Florida
Statutes (2015). Under appropriate circumstances, and with written reasons
provided, a trial court is authorized to impose a downward departure sentence even
in the absence of a below-guidelines plea offer from the State. See Fla. R. Crim. P.
3.704(d)(27).
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The case then proceeded to trial, and a jury was selected. Immediately
before trial was to commence, the trial court determined that the State had
committed a discovery violation and excluded certain evidence significant to the
State’s case.
Before the trial court’s ruling but after the Richardson hearing, the
prosecutor announced she would “accept a defense counter[offer] of 75 months in
state prison,” but would not characterize this as a “state offer.” Nevertheless, the
prosecutor was aware, based on a previous case in front of this same judge, that
this “invitation for a defense counteroffer” would be treated as a State plea offer.
The trial judge even advised the prosecutor:
[T]he State plays the semantic game because, in its view, it has not
extended an offer, and as a result, the Court is not permitted to offer a
below-code plea. The State is incorrect. By representing it will
accept the defendant’s counteroffer to plead to a particular sentence,
the State is, as a matter of law extending a plea offer.
The trial court then extended an offer, which Herrera-Fernandez accepted, of
eighteen months in state prison followed by three years of probation. Later, in its
written order imposing sentence, the trial court expanded on its legal analysis:
As the State was well aware, this Court had previously concluded that
by ‘agreeing to accept a counteroffer’ for a specified sentence the
State is—as a matter of law—extending an ‘offer.’
This Court previously wrote [in a case involving a similar issue]: to
convey its below code plea ‘offers’ the State routinely employs the
charade of advising defendants that it will ‘accept’ a below code
‘counteroffer.’ The State plays this semantic game because in its view
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it has not extended an ‘offer’ and, as a result, the Court is not
permitted to offer a below code plea. The State is incorrect.
By representing that it will ‘accept’ a defendant's counteroffer to plea
to a particular sentence the State is—as a matter of law—extending a
plea ‘offer.’ See Restatement (Second) of Contracts, Section 24 (Offer
Defined: ‘An offer is the manifestation of willingness to enter
into a bargain, so made as to justify another person in
understanding that his assent to that bargain is invited and will
conclude it’); Garcia v. State, 722 So. 2d 905 (Fla. 3d DCA 1998)
(‘[a] plea agreement is a contract and the rules of contract law are
applicable to plea agreements’).
I agree with the trial court’s legal conclusion. The prosecutor’s “invitation”
for a defense “counteroffer” (in the absence of any pending offer) which included
specific terms (75 months’ imprisonment) and indicated the prosecutor’s
willingness to accept that “counteroffer,” was indeed an “offer” extended by the
State.
Once the prosecutor made an offer below the bottom of the guidelines (and
waived the mandatory minimum sentence), the trial court was authorized to extend
its own offer even if it was more favorable to the defendant than the prosecutor’s
offer. By extending its own below-guidelines offer, the State recognized the
appropriateness of a sentence below the bottom of the guidelines, and therefore
cannot object to the court’s offer or the extent of the departure. See Aguilar, 775
So. 2d at 996 (holding: “Where the state and the defendant agree that a departure
from the sentencing guidelines is appropriate, the extent of the departure is within
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the sound discretion of the trial judge”) (citing State v. Collins, 482 So. 2d 388,
390 (Fla. 5th DCA 1985)).
The prosecutor’s position in the trial court placed the State (and the Attorney
General’s Office) in a quandary here on appeal. This is best illustrated by
comparing the unconventional “invited counteroffer” with the conventional 60-
month offer extended a year before trial. As previously explained, the 60-month
offer was extended by the prosecutor, rejected by the defendant, and then
withdrawn by the prosecutor. The trial court properly acknowledged that the
prosecutor’s withdrawal of the 60-month offer prevented the court from offering
its own below-guidelines offer or an offer that waived the mandatory minimum.
As for the unconventional 75-month offer on the day of trial, the prosecutor
argued to the trial court that this was not an offer at all, but merely a willingness to
entertain a defense counteroffer (even though there was no offer outstanding). The
prosecutor never withdrew the “invited counteroffer,” nor could she logically have
done so without conceding that it was, in reality, an offer rather than an “invited
counteroffer.” Given the prosecutor’s position below, it is a daunting challenge on
appeal for the State to contend that the prosecutor withdrew the offer and, by doing
so, precluded the trial court from making its own below-guidelines offer. See,
e.g., Malloy, 23 So. 3d at 1292-93 (reversing a downward departure sentence
imposed pursuant to a plea offered by the trial court where the trial court made its
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offer after the State had “clearly and effectively withdrawn” its below-guidelines
offer).
CONCLUSION
In the instant case, the prosecutor “invited” the defense to make a
“counteroffer” of 75 months in prison (in the absence of any pending offer), and
agreed that the State would “accept” such a “counteroffer” if made by the
defendant. This was, plainly and simply, a State offer, regardless of the
prosecutor’s characterization of it as an “invited counteroffer.” It was no more a
counteroffer than a dog’s tail is a fifth leg. Because the trial court properly
determined that the “invited counteroffer” was really a below-guidelines plea offer
that also waived the mandatory minimum sentence, and because that plea offer was
not withdrawn by the State, the trial court was within its authority to extend its
own plea offer to the defendant.
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