Its never easy for a defendant to stand before a judge for sentencing. In over 20 years of defending criminal cases, I've seen my fair share of judges decide at the last minute to reject a plea agreement. In some cases, its a blessing. A few years ago, I worked out a good deal for a client charged with sale and delivery of cocaine. The Orange County judge rejected the plea deal, we went to trial, and got a not guilty. Unfortunately, not every rejected plea winds up better off in the long run. Most end up in a worse position. But, is it fair that a defendant could end up with a worse sentence due to a plea agreement breach on the part of the State? This is America, right? Let's take a peek at recent case involving a plea agreement gone wrong, and what can be done about it.
Joshua O'Berry decided it would be in his best interest to enter a plea to a charge of burglary of a dwelling with an assault or battery therein. This charge sounds a lot like a home invasion, doesn't it? Well, burglary of a dwelling with a battery therein is punishable by life in prison. Ouch. O'Berry decided to not risk a jury trial, so he entered a no contest plea "to the bench" with the state agreeing to recommend 40 years in prison. As you might expect due to the fact that I'm writing about this, the plea didn't go as planned. First, during entry of the plea, the State decided to recommend a life sentence rather than the 40 years they agreed to recommend. Second, the judge sentenced O'Berry to 50 years prison.
O'Berry was not permitted to withdraw his plea so he appealed, and we're now here to discuss what happened on appeal, in O'Berry v. State, 114 So. 3d 1110 (Fla. 2d DCA 2013). First, a dangerously short (at the risk of being inaccurate) breakdown of the actual plea and sentencing:
O'Berry's Attorney: "It's going to be an open plea to the Court. The State indicated that they would be recommending 40 year in prison but there is no cap and the Defense . . . can argue for . . . a lawful sentence."
Prosecutor: "Well, Your Honor, our original offer on this case was life. I discussed it with [defense counsel] for a plea offer at one point and we came down to 40 years for a negotiated plea. However, that never panned out. So we're here in front of you on a sentencing hearing with no cap. The first charge . . . is a burglary with a battery. That's a first degree felony punishable by life. So the State is asking for the maximum in this case, Your Honor." Id.
O'Berry's Attorney: ". . . that's not part of the plea agreement."
Prosecutor: "We came down to a negotiated plea for 40 years. That wasn't accepted."
Later, the judge, again, asked for a prosecutor recommendation:
Prosecutor: "Well, we did propose I guess a recommended offer of 40 years."
The judge then sentenced O'Berry to 50 years in prison.