Wood v. State

357 So. 2d 1060
District Court of Appeal of Florida·Decided April 21, 1978·No. HH-49·Published·Cited by 13 cases

Opinion

357 So.2d 1060 (1978)

Jerry WOOD, Appellant,
v.
STATE of Florida, Appellee.

No. HH-49.

District Court of Appeal of Florida, First District.

April 21, 1978.

*1061 Judith J. Dougherty, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and A.S. Johnston, Asst. Atty. Gen., for appellee.

SMITH, Judge.

Wood appeals from a judgment and sentence of the Leon County Circuit Court, entered on his plea of guilty to a charge of possession of cocaine. Section 893.13(1)(e), Florida Statutes (1977). The issue is whether the five-year sentence was lawfully made to run consecutively with a five-year sentence Wood was then serving as a result of his conviction for willfully failing to appear for proceedings in this very case, after having been admitted to bail. Section 843.15, Florida Statutes (1977). We find that the State Attorney violated his plea bargain agreement to recommend a concurrent sentence, that Wood's guilty plea was vitiated, and that the trial court was without authority to impose a consecutive sentence without first having given Wood an opportunity to withdraw his plea.

After plea discussions between Assistant Public Defender Judith Dougherty, Wood's counsel, and Assistant State Attorney James White, Wood appeared before Judge Miner on June 13, 1977, to offer a plea of guilty "with the understanding that there will be a joint recommendation by the State and Defense that the time given on this charge would run concurrently" with his sentence for willful failure to appear. Mr. White confirmed that recommendation in behalf of the state. Judge Miner accepted the plea after inquiring:

THE COURT: You understand that while the Court puts considerable weight on the recommendations of counsel, there is nothing in the law that requires it to follow those recommendations. Do you understand that?
MR. WOOD: Yes, sir.
THE COURT: It is totally a matter for the prerogative of the Court.
MR. WOOD: I understand.
THE COURT: And with that understanding, this is what you wish to do?
MR. WOOD: Yes, sir.

The court then ordered a presentence investigation and directed Mr. Mercer, a parole and probation officer who was present, to provide a report within three weeks.

*1062 On June 29, parole and probation officer Fred Ingley completed a two-part report of his presentence investigation. His six-page report of "factual material" was disclosed by the court to Wood and his counsel; his five-page "confidential evaluation" was not. Fla.R.Crim.P. 3.713(a), (b).[1] Mr. Ingley's factual report included the following representations concerning recommendations by court and law enforcement officers:

Judy Dougherty [Wood's counsel] stated that there was a co-recommendation between the prosecution and the defense that the subject receive a concurrent sentence to the Failure to Appear case in which he was recently sentenced in the Leon circuit court.
As of the date of dictating this PSI, 6-24-77, this writer has been unable to contact Assistant State's Attorney Jim White reference his recommendations on this instant offense.

Mr. Ingley's recitation of factual material concluded with his certificate that

The above is true and correct to the best of my knowledge and belief.

On July 11, Wood appeared again before Judge Miner for sentencing in the presence of Assistant Public Defender Dougherty and Assistant State Attorney White. Lawyer Dougherty stated:

Your Honor, I hope that under the circumstances the Court feels that it can go along with the recommendation by the state and defense that this sentence . . run concurrently to the failure to appear sentence, which was for the same offense as he's now before the Court on.
THE COURT: Is there a recommendation to that effect, Mr. White?
MR. WHITE: The State said it would not oppose her recommendation for concurrent time [for] the failure to appear and possession of cocaine. We would not speak in opposition to that.
THE COURT: Do I hear an affirmative recommendation from the State of Florida that there be ____, Was there any kind of affirmative recommendation?
MR. WHITE: No, sir. We just agreed to remain silent as to that aspect.
THE COURT: Well, I do not agree.
.....
MRS. DOUGHERTY: I had a note of this. Well, that's all right, your Honor. We will go along with what the State says. We're recommending a concurrent sentence and they do not oppose it.

Wood attempted to explain to Judge Miner some of the offenses described in the factual section of Mr. Ingley's presentence report. The court then adjudicated Wood guilty of possession of cocaine and sentenced him to a five-year term to run consecutively with the term he was then serving.

Lawyer Dougherty filed, on August 10, a notice of appeal in Wood's behalf, and only then sought an order for transcripts of the plea and sentence proceedings, which were filed in September. Briefs were submitted in this court on the question of whether the consecutive sentence was vitiated by Assistant State Attorney White's failure or refusal, at the sentencing on July 11, to verify his prior recommendation of a concurrent sentence. The state here argued, among other things, that Assistant Public Defender Dougherty acquiesced at sentencing in the state's change of position.

In the meantime, with the transcripts in hand, lawyer Dougherty went to Judge Miner. He revealed to her, for the first time, the "confidential evaluation" section of Mr. Ingley's presentence report, which thereafter was made a part of this record. There Mr. Ingley had reported, over a similar *1063 certificate, that it was "true and correct to the best of my knowledge and belief," that:

In addition to the prosecuting attorney Jim White, another State Attorney, Tony Bajoczky, indicated that he felt this was probably one of the worst individuals he has ever dealt with and hoped the Court would see fit to incarcerate him for as long as is possible for this and any other offense for which the subject might have been or be found guilty.

We can only hope that Mr. Ingley's confidential report was in error in reciting that Assistant State Attorney James White joined Assistant State Attorney Tony Bajoczky's recommendation that Wood be incarcerated "for as long as is possible." Conceivably Mr. Ingley gained an erroneous impression of lawyer White's views through his colleague Mr. Bajoczky, or through other hearsay. But, even assuming that to be true, and reading this incomplete evidence in a light most favorable to the prosecuting authorities and Mr. Ingley, it appears beyond question that Wood's plea of guilty on June 13 was induced by Assistant State Attorney White's recommendation of a concurrent sentence; that lawyer White reneged on his recommendation at the sentencing hearing and refused to do more than stand silent in the face of a direct inquiry concerning his recommendation; that Assistant State Attorney Bajoczky, who knew or should have known of the plea bargain, strongly recommended to Mr. Ingley that Judge Miner be urged to incarcerate Wood for as long as possible; that Mr. Ingley knew or should have known from his colleague Mr. Mercer that Assistant State Attorney White had recommended a concurrent sentence on June 13; that Mr.

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