Filing # 31258663
29257328 E-Filed 08/25/2015
07/04/2015 09:24:25
11:59:04 AM
AM
OFFICE OF THE STATE ATTORNEY
SEVENTH JUDICIAL CIRCUIT OF FLORIDA
VOLUSIA, FLAGLER, PUTNAM & ST. JOHNS COUNTIES
R.J. LARIZZA
251 N. RIDGEWOOD AVENUE
DAYTONA BEACH, FL 32114
PHONE: (386) 239-7710
FAX: (386) 239-7742
STATE ATTORNEY
RECEIVED, 08/25/2015 09:28:35 AM, Clerk, Supreme Court
In Re: Amendments to the Florida Rules of Criminal Procedure
Case No.: SC15-290
July 4, 2015
To the Florida Supreme Court and Members of the Criminal Procedure Rules and the
Appellate Court Rules Committees:
I recognize the proposals published in the July 1, 2015 issue of the Bar News pertain to
the rendition of post-conviction orders for purposes of appeal. Even so, because rule
3.800(c) is currently under review, I write with the hope that additional language will be
added at the end of the rule.
To be more specific, it is common across the state for the parties in a criminal case to
reach an agreement about the charges that the defendant will plea to and the sentence
that should be imposed. This agreement is tendered to the trial judge, who usually
accepts the agreement, and then imposes the agreed-upon sentence.
For whatever reasons, it is also not unusual for the defense to subsequently file a rule
3.800(c) motion, requesting that the trial judge reduce the agreed-upon, previouslyimposed sentence. A rule 3.800(c) motion is not appropriate in these circumstances,
however, because the parties entered into a contract that was accepted by the trial judge
and a sentence has been imposed. Moreover, prosecutors would have no incentive to
enter agreements if the judge were allowed to change the agreement after the
sentencing, thus preventing the state from getting the benefit of its bargain.
Supporting case law includes State v. Gutierrez, 10 So. 3d 158 (Fla. 3d DCA
2009)(holding that a plea agreement imposing upon a specific sentence could not be
circumvented by defendant's filing a motion to mitigate sentence) and State v. Swett,
772 So. 2d 48, 52 (Fla. 5th DCA 2000)(stating that a defendant's sentence negotiated
pursuant to a plea agreement was part of a quid pro quo and, therefore, a defendant
“cannot accept the benefit of [a plea] bargain without accepting its burden”).
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Appendix A – 1
I therefore respectfully request the committees and the Court consider codifying the
holding in the Gutierrez and Swett cases at the end of rule 3.800(c), which should help
reduce the number of rule 3.800(c) motions filed and should also help judges quickly
resolve those rule 3.800(c) motions improperly-filed.
Some may argue that there is no need for a rule change because of this existing case
law. In response, I can tell you from practical experience that many prosecutors,
defense attorneys, and judges are unfamiliar with the case law. Thus the absence of
numerous appellate cases on this issue does not mean that a problem does not exist.
As a remedy, I suggest the following for rule 3.800(c):
(c) Reduction and Modification. A court may reduce or modify to include any of
the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it, sua sponte, or
upon motion filed, within 60 days after the imposition, or within 60 days after receipt by the
court of a mandate issued by the appellate court on affirmance of the judgment and/or
sentence on an original appeal, or within 60 days after receipt by the court of a certified copy
of an order of the appellate court dismissing an original appeal from the judgment and/or
sentence, or, if further appellate review is sought in a higher court or in successively higher
courts, within 60 days after the highest state or federal court to which a timely appeal has been
taken under authority of law, or in which a petition for certiorari has been timely filed under
authority of law, has entered an order of affirmance or an order dismissing the appeal and/or
denying certiorari. If review is upon motion, the trial court shall have 90 days from the date
the motion is filed or such time as agreed by the parties or as extended by the trial court to
enter an order ruling on the motion. If no order is entered on the motion within 90 days or
such time as extended by the parties or the trial court, the motion shall be deemed denied. This
subdivision shall not be applicable to those cases in which the death sentence is imposed or
those cases in which the trial judge has imposed the minimum mandatory sentence or has no
sentencing discretion or has imposed a sentence as a result of a judicially-accepted agreement
between the state and the defendant, unless the agreement explicitly allowed the judge to
reduce or mitigate the sentence.
Respectfully submitted,
/s/ Heatha Trigones
Heatha Trigones
Assistant State Attorney
Fla. Bar No. #0688266
440 South Beach Street
Daytona Beach, FL 32114
(386) 238-4894
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Appendix A – 2
[email protected]
CERTIFICATES OF SERVICE AND FONT
I HEREBY CERTIFY that this comment has been typed using Times New
Roman 14 and that a true and correct copy has been sent to by email to Judge Samantha
Ward at [email protected]; to Wendy Loquasto at [email protected]; and
to Heather Telfer at [email protected]; this 4th day of July, 2015.
/s/ Heatha Trigones
Heatha Trigones
Assistant State Attorney
Fla. Bar No. #0688266
440 South Beach Street
Daytona Beach, FL 32114
(386) 238-4894
[email protected]
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Appendix A – 3