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Prosecutor's failure to comply with plea agreement

Prosecutor's failure to comply with plea agreement results in dismissal of criminal charges.

The case of State v. Simmons, 34 Fla. L. Weekly D2352(b) (Fla. 1st DCA November 13, 2009) involved an appeal by the State of Florida from an order dismissing charges because the state did not comply with the plea agreement.

Mr. Simmons had been charged with the offenses of theft of trade secrets, disclosing trade secrets and grand theft. Simmons was alleged to have appropriated his employer's quilting machine and computerized business records, which included supplier lists, customer lists and other business information which were alleged to be trade secrets.

At the time that the criminal case was filed, the defendant and the alleged victim were engaged in civil litigation involving the same underlying facts.

The attorneys for the victim, the attorney for the defendant, as well as the assistant state attorney, reached an agreement for full settlement of the civil case, as well as the criminal case.

The agreement called for the defendant to be admitted into the Pretrial Intervention Program on a charge of disclosing of trade secrets and that the other two charges would be dismissed. In addition, the defendant was to make restitution to the victim in the amount of $4,500.00. The plaintiff in the civil matter, agreed to release the defendant from civil liability and to dismiss the civil lawsuit.

The agreement was reduced to writing and signed by the assistant state attorney, the defendant's attorney and the defendant, as well as the victim's lawyers in the civil case.

The trial judge approved the agreement and incorporated it into the order directing the parties to comply. In a short period of time the defendant paid the $4,500.00 in restitution. After receiving the $4,500.00 however, the victim attempted to back out of the settlement agreement by refusing to sign the consent form for the defendant's admission to the Pretrial Intervention Program.

The defense then filed a motion to enforce the settlement agreement which was opposed by the prosecutor, although the court noted that the prosecutor did not offer any evidence or argument to excuse the victim's non-compliance. The trial judge entered an order granting the defendant's motion to enforce the settlement agreement and allowed the state two weeks to nolle prosequi the charges. The state did not comply. The trial judge then entered an order dismissing the case. It was from this dismissal that the state appealed.

The state argued that the agreement was not enforceable because the trial judge had no authority to compel the prosecutor to place the defendant in a pretrial intervention program. The court noted that as a general principle, this is correct because the prosecutor has the sole discretion to admit a defendant into pretrial intervention. Batista v. State, 951 So. 2d 1008 (Fla. 4th DCA 2007) and State v. Board, 656 So. 2d 880 (Fla. 2d DCA 1990). The appellate court in Simmons noted that the court had not ordered the defendant enrolled into the pretrial intervention program but simply directed that the state comply with the settlement/plea agreement or suffer dismissal of the case. The court stated that the agreement was not voidable at the option of the prosecutor merely because it contained a pretrial intervention program among its terms.

The court rejected the state's argument concerning the pretrial intervention program stating, "The only reason the defendant did not enroll in the pretrial intervention program is that he was denied enrollment by the state. There was no real breach of the agreement by the defendant and therefore no justification for the state's refusal to honor it."

The district court of appeal also noted that the state's attempt to withdraw the plea agreement occurred after the defendant had made restitution. The court stated:

If that conduct is acceptable, the promise of pretrial intervention could be used as a device to collect restitution and then be withdrawn once the restitution is paid. This possibility is particularly troubling in a case like this one, which is closely related to a civil dispute between the defendant and the alleged victim. It is not fair to allow the alleged victim to withdraw his agreement in the criminal case after he has successfully employed the threat of prosecution to collect the money that was at issue in the civil case.

The court recognized the settled principle of criminal procedure that if the government fails to honor a plea agreement, the court may either enforce the agreement or allow the defendant to withdraw the plea. Santobello v. New York, 404 U.S. 257 (1971); Tillman v. State, 522 So. 2d 14 (Fla. 1988); Spencer v. State, 623 So. 2d 1211 (Fla. 4th DCA 1993); and State v. Borrego, 445 So. 2d 660 (Fla. 3d DCA 1984).

The court noted that in some situations it would be appropriate to allow the defendant to withdraw his plea of guilty. While in others the only fair remedy is to enforce the agreement. Florida courts have recognized that specific performance is a proper remedy if the defendant has performed the agreement. Williams v. State, 341 So. 2d 214 (Fla. 2d DCA 1976) and Buffa v. State, 641 So. 2d 474 (Fla. 3d DCA 1994). The court stated, "As these cases illustrate, justice is not always served merely by allowing the defendant to withdraw the plea and start over."

In white-collar crimes such as theft of trade secrets, civil litigation between the defendant and victim may also be on-going. Even if civil litigation is not involved, the victim and the defendant in the criminal case may reach a civil settlement agreement without litigation. This case makes it clear that the defendant should not be denied the benefit of the plea agreement when he complies with the plea agreement to the greatest extent possible. While this is a white-collar crime, the same principles apply to any other criminal case.