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Legal Pleadings:

Withdraw Plea- Challenge Illegal Search

PRELIMINARY STATEMENT

Appellant was the defendant in the trial court. This brief will refer to Appellant as such, or as defendant, or by proper or given name. Appellee, the State of Florida, was the prosecution below. The brief will refer to Appellee as such, the prosecution, or the State.
The record on appeal consists of one volume, which will be referred to as “R” followed by the appropriate page number designated in the Index to the Record on Appeal. Reference to the Appellant’s Initial Brief will be designated as “IB”, followed by the page number, for example (IB 22). Reference to the Appellee’s Answer Brief will be designated as “AB”, followed by the page number, for example (AB 22).
As the Appellee’s Answer Brief restated the grounds of appeal and consolidated grounds one through four, and as this Reply Brief is a direct response the Appellee’s Answer Brief, this Reply Brief will be organized and restate the grounds as succinctly stated in the Appellee’s Answer Brief.
This Amended Reply Brief rectifies a computer error. When this brief was originally converted to .pdf format and filed, almost the entire brief did not convert correctly. Other than this paragraph of explanation, there are no further changes.

ARGUMENT IN REPLY

ISSUE I Whether the Trial Court Erred in Denying Appellant’s Post-Sentence Motions to Withdraw Plea
Simply put, the question before this Honorable Court is whether it is lawful for a trial court to condition the acceptance of a negotiated plea on the waiver of a Constitutional right. The Appellee contends that a trial court violates neither the Constitution or the Florida Rules of Criminal Procedure by conditioning the acceptance of a negotiated plea on the waiver of the right to appeal. (AB 7). The State rightfully concedes that “the trial judge decided to reject the plea due to Paragraph 4.” (AB 7) citing (R 307, 311). Paragraph 4 of the written plea agreement expressly permitted the Appellant to appeal his dispositive motion to suppress. (AB 7). Appellee contends that the trial court conditioning the acceptance of a plea on waiving a fundamental right is “a proper exercise of judicial authority.” (AB 7). Respectfully, as discussed below, that is mistaken and the trial court abused its discretion.
Appellee argues that “a plea is not rendered involuntary due to judicial participation in the plea bargaining process.” (AB 6) citing State v. Warner, 762 So. 2d 507, 513 (Fla. 2000). The Warner case is particularly illuminating with regard to the issue presented to this Honorable Court. In Warner, the State appealed after a criminal defendant was made a “court offer”, that is, the trial court indicated what sentence it determined would likely be appropriate based on the nature of the charge and information available to the trial court. Warner at 514. In Warner, the issue was not the altering of a plea agreement by the trial court, but participation in the potential sentencing outcomes of the case.
In the case at bar, the trial court failed to follow the admonishments of Warner in two material respects. First, the trial court conditioned acceptance of the plea on the Appellant waiving his Constitutional right to appeal, in violation of Warner. Warner at 514 (“To avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial”). Second, as will be discussed below, the trial court conducted plea negotiations at the bench, rather than in open court and on the record, again, in violation of Warner. Warner at 514 (“A record must be made of all plea discussions involving the court”). Failure of the trial court to follow these strictures compels that this case be remanded to allow the Appellant to withdraw his plea.
While the State is correct to the extent that the trial court is permitted to make a “court offer” or accept or reject a plea agreement, neither of those occurred in this case. As Appellee makes plain, the Appellant’s “new plea deal . . . was an exact copy of the previous deal, apart from Appellant’s waiver of his right to appeal the denial of his motion to suppress.” (AB 8) citing (R 70). Indeed, the written plea form was the same, and merely “crossed-out Paragraph 4, which expressly reserved the suppression motion for appeal.” Id.
This is not a case where a trial court initiated a plea dialog in order to resolve a case. This is also not a case where the trial court believed the proposed disposition was inappropriate for the facts and the charge. Had, for instance, the trial court believed that the plea bargain was inappropriate because the term of incarceration was insufficient, the trial court would have been well within its right to reject the plea bargain. However, the trial court cannot condition the acceptance of the plea on the waiver of a fundamental right and sua sponte condition the acceptance of a plea bargain between the parties on depriving this Honorable Court of the ability to review the decisions of the trial court. Indeed, if trial courts were permitted to condition the acceptance of pleas on such a waiver, appellate courts would only be permitted to review Fourth Amendment issues after a trial on the merits. The trial court abuses its discretion where it conditions the acceptance of a plea bargain on the waiver of a fundamental right.
The Florida Supreme Court has made clear that “a trial judge cannot punish a defendant for exercising his or her appellate rights.” Wilson v. State, 845 So. 2d 142, 150 (Fla. 2003) citing North Carolina v. Pearce, 395 U.S. 711, 724 (1969). The Supreme Court has held that “‘penalizing those who choose to exercise’ constitutional rights, ‘would be patently unconstitutional.’” Pierce at 724 quoting United States v. Jackson, 390 U.S. 570, 581 (1968).
While the Appellee’s Answer Brief focuses on the “voluntariness” of Appellant’s H. choice, the analysis is superfluous to the ultimate issue at bar. The question is not whether the Appellant ultimately acquiesced to the trial court, but whether the trial court committed error by conditioning the acceptance of a plea on the waiver of a Constitutional right. As the Supreme Court has made clear, a trial court “is without right to put a price on an appeal. A defendant’s exercise of a right of appeal must be free and unfettered. It is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice.” Pearce at 724 (internal citations omitted). Again, this is not a court rejecting a plea offer due to the sentence, but rather of one where the trial court impermissibly conditions acceptance on the waiver of appellate review on a dispositive motion to suppress.
Further, although Appellant contends that the actions of the trial court rendered his initial plea involuntary, the error was compounded by both the original trial court and the successor trial court failing to hold an evidentiary hearing. Both of Appellant’s motions to withdraw plea are predicated on conversations that impermissibly, as they pertained to plea negotiations, took place off the record. (R. 307-09) see also Warner at 514 (“A record must be made of all plea discussions involving the court”). The Appellee states the correct law when it states that “a defendant should be entitled to an evidentiary hearing . . . if the record does not conclusively rebut a cognizable claim.” (AB 5). However, applying that law to the facts here, the record cannot refute the cognizable claim that the trial court impermissible engaged in plea negotiations off the record, as such conversations, by their definition, cannot be refuted by the record. Both trial courts erred in failing to have an evidentiary hearing, as the record can never refute “off the record” conversations. The record provides evidence that such conversations took place, but the failure of the trial court to have a hearing on the claims is reversible error. (R. 307-09).
As the State correctly notes, a trial court is “not required to accept a negotiated plea he does not concur with.” (AB 7). However, there are limits to the trial court’s discretion. “Discretion unrestrained by principle, by methodology and by standards is contrary to our rule of law. It would substitute rule by the whim of judges. . . Judicial discretion exists not for its own sake but merely because it is impossible to set down a single rule to govern all procedural questions that arise in judicial proceedings.” Rigabar v. Broome, 658 So. 2d 1038, 1041 (Fla. 4th DCA 1995), as supplemented on denial of reh’g (July 5, 1995).
The law in Florida is clear on this point. In an analogous situation, the trial court presented the defendant with a similar H. choice, where the “sentence hinged on a procedural choice: the waiver of the right to appeal.” Fudge v. State, 45 So. 3d 982, 983 (Fla. 3d DCA 2010). In reversing that sentence, the Third District held that a “defendant’s refusal to waive his/her right to appeal is not a valid reason to impose a greater sentence.” Id. at 983 quoting Nairn v. State, 837 So. 2d 519, 520 (Fla. 3d DCA 2003).
The Appellee further avers that the trial court “never implied that Appellant would receive a harsher sentence if he decided to decline the plea offer. As the record reflects, the trial court simply provided Appellant with a realistic assessment of potential penalties.” (AB 11). With all respect and deference such an argument merits, no rational individual in the Appellant’s position would have any reasonable belief that a trial court would reject a sentence based on the inclusion of the right to appeal, but not sentence such an individual more harshly. As dictated by Warner, the trial court “must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices.” Warner at 514 (emphasis added). Indeed, it strains credulity to suggest that the Appellant would not face a harsher sentence. There would be no reason for the trial court to reject the negotiated disposition and condition the acceptance of the on a portion of the negotiation that the trial court, as a matter of law, is prohibited from considering in fashioning a sentence. See e.g. Wilson at 150 (holding that “a trial judge cannot punish a defendant for exercising his or her appellate rights.”) Therefore, it strains logic to suggest that the trial court would reject the plea based on reservation of a Constitutional right, but sentence Appellant no more harshly, while preserving the right to appeal that the trial court found objectionable.
In another, albeit similar case, a defendant rejected the trial court’s offer to waive his right to appeal, where the trial court offered to a specific sentence if the defendant “waived his right to appeal.” Correa v. State, 892 So. 2d 1067, 1068 (Fla. 2d DCA 2004). There, as here, the conversations occurred off the record. Id. Ultimately, counsel informed the trial court that the defendant wished to retain his right to appeal, which led to a sentence of three additional years. Id. After assessing the Warner factors, which the Second Circuit said “must be met when a judge participates in plea negotiations,” the appellate court reversed the sentence, finding it to be vindictive in failing to satisfy the strictures of Warner. Id. at 1068. The Appellant, likewise, was placed into an impossible choice. Just because he chose a different option, that is to acquiesce to the trial court’s conditions rather than facing additional incarceration after an open plea, does not vitiate the abuse of discretion by the trial court.
There are likely many scenarios where the State may concede on certain sentencing issues, such as incarceration, based on concern of losing an appeal. In such a case, the State bargains away sanctions against the defendant in exchange for certainty in the outcome of the conviction. In such a bargain, both parties obtain benefit from the deal and the Constitution is unoffended. However, it is unlawful and inappropriate for a trial court to bargain for a lack of oversight and review. Unlike the State, there is no scenario where a trial court can lawfully condition the acceptance of a plea on the waiver of a fundamental right. As such, a bright-line rule must exist to state that a trial court cannot condition the acceptance of a negotiated plea on the waiver of a fundamental or Constitutional right, unless otherwise bargained for by the parties.
ISSUE V The Trial Court Erred by Denying the Motions to Suppress
As to Issue V, the State initially raises two arguments regarding jurisdiction and preservation. As a threshold issue, this Honorable Court must determine the prior four issues to determine if it need address the trial court’s ruling on the motion to suppress. If this Court determines that the first four issues are due to be denied, then the Appellee is correct, to the extent that Appellant has waived his right to appeal in the written plea agreement. However, if this Court determines that either the conduct by the trial court rendered the plea involuntary, or the motions to withdraw plea should have been granted, or that the motions to withdraw plea could not be denied without holding an evidentiary hearing, then this cause must be remanded to the trial court. The Appellee is correct that if this Court determines that the Appellant voluntarily entered his plea and that it should not be withdrawn or a hearing held to determine if it should be withdrawn, then Appellant is bound to the terms of the plea agreement. However, based on Issues I-IV in the Initial Brief, the plea entered was not voluntary and subject to either being set aside or allowed to be withdrawn.
Although judicial economy may be served by addressing the motions to suppress, as Appellee makes clear in its Answer Brief, either the plea is infirm for the reasons raised in Issues I-IV and this Court lacks jurisdiction, or it is not otherwise infirm and the Appellant’s plea agreement waives his right to appeal the denial of Appellant’s motions to suppress. If, however, this Court determines otherwise, then with one exception, Appellant would rely on his Initial Brief as to Issue V.
With regard to that exception, the Initial Brief makes clear that one of the grounds raised for suppression is that the initial stop of the Appellant’s vehicle was unlawful and that the prosecution presented no evidence or witnesses to rebut this claim, as is their burden. (IB 26-28). The prosecution bears the burden of proving that a warrantless stop of a vehicle was conducted lawfully and with probable cause. Gonzalez v. State, 614 So. 2d 40 (Fla. 3d DCA 1993), (holding that “the trial court erred in denying the defendant’s motion to suppress where the stop could not be justified on the basis that the defendant was speeding since there was no evidence to support the trial court’s finding that the defendant was speeding.”)
In order to factually rebut the claim that the prosecution failed to offer any evidence regarding the validity of the stop of Appellant’s vehicle, the Appellee spends roughly half a page describing its version of the factual scenario that led to the stop of Appellant’s vehicle. (AB 16). Curiously, in abrogation of Fla. R. App. P. 9.210(b)(3), there are no record cites to the evidence or testimony to support the claims. Id. This is, simply, because the record is devoid of such evidence or testimony. Appellee invites this Court to “infer[] from the record” certain testimony regarding the stop of Appellant’s vehicle. Id. Additionally, Appellee refers this Court to a police report that was not offered at the hearing on the motion to suppress, not testified about, and would have been inadmissible hearsay without exception had the prosecution attempted to offer it as evidence. Id. Respectfully, if this Court is inclined to address the merits of the motion to suppress, it should decline Appellee’s invitation to “infer” testimony that was never offered or presented and disregard an inadmissible police report that was never offered in evidence. Id.
CONCLUSION
The trial court erred, both by impermissibly conditioning the acceptance of his plea on waiver of a fundamental, Constitutional Right, and by conducting said plea negotiations off the record. Thus, Appellant’s plea was not freely and voluntarily entered, is void, and is due to be reversed due to the trial court’s abuse of discretion. Although Appellee focuses on the voluntariness of Appellant’s plea colloquy, the error had already occurred. This error was further compounded by both the trial court and the successor trial court determining that Appellant’s motions to withdraw plea should be denied and could be denied without a hearing, even though the record cannot refute, by definition, conversations that occurred off the record.
This Honorable Court should vacate the judgment and sentence in this case, and transfer the case to a second successor judge. If this Court believes it permissible, in the interests of fairness and judicial economy, this Court should treat the coerced waiver of appellate rights as a nullity, review and reverse the orders denying suppression, and remand with directions that they be granted, and the case dismissed and any other relief that this Court deems necessary and proper.