Parson v. State of Florida

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2023-0869

_____________________________

MICHAEL M. PARSON,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

_____________________________

Petition for Writ of Certiorari—Original Proceeding.

July 2, 2025

TANENBAUM, J.

The petition asks that we review a trial court’s order denying

early termination of sex-offender probation. Michael Parson had

entered a plea agreement with the State—under which he would

plead no contest to traveling to meet a minor, adjudication of guilt

would be withheld, and ten years of sex-offender probation would

be imposed. The written plea agreement included a handwritten

notation, “EARLY TERM AT 5 YEARS,” regarding probation. At

the plea colloquy, Parson was asked the following by his lawyer:

“The State has also agreed to an early termination at five years, if

you complete everything and do everything you’re supposed to do.

No violations or offenses during that time. Okay? Of course, that

would have to be approved by the court. Okay?” (emphasis

supplied). Parson answered, “Yes, sir.” At the end of the colloquy,

the judge accepted the plea and pronounced the disposition as

follows:

I am going to follow the negotiated disposition in this

case. I’m going to withhold adjudication pursuant to my

findings already. I am going to sentence him to 120

months probation. It will be the same conditions as sex

offender probation. So just to make sure it’s clear, it’s

standard probation but with sex offender sanctions.

The appendix submitted by Parson with his petition includes

a six-page “Petition to Enter Plea of Guilty/Nolo Contendere.” The

first four pages of that document contain statements initialed by

Parson going to whether he was knowingly and voluntarily

entering his plea. Page five contains the “Plea Agreement” that

included the handwritten notation just mentioned; this agreement

was signed by Parson, his lawyer, and the prosecutor. Page five is

a signed certification by Parson’s counsel. Page six is the court’s

order accepting the plea (not the plea agreement) as having been

“freely, knowingly, intelligently and voluntarily entered by the

Defendant.” The sentencing judge nowhere signed or purported to

make itself a party to the plea agreement. The judge did, however,

sign an order of probation that withheld adjudication and placed

Parson on supervision with the Department of Corrections for 120

months, or ten years. The probation order makes no reference to

early termination, an omission Parson seems not to have

challenged. 1

1 The dissent is incorrect in its assertion that the original

sentencing judge “orally pronounced” the early-termination term

when he stated that he would “follow the negotiated disposition.”

The context of the judge’s statement belies this contention.

Immediately after stating that he would “follow the negotiated

disposition,” the sentencing judge specifically withheld

adjudication and pronounced a 120-month probation—with sex

offender conditions—as the disposition. The judge further

discussed other specific conditions of probation, and then imposed

costs. The judge, then, “followed” the agreement by orally imposing

sentence in a manner he considered consistent with the

agreement, rather than simply adopt the plea agreement by

reference. In doing so, the judge did not mention early termination

2

More than six years into his probation, Parson wrote to the

trial court, stating that he had successfully complied with all the

probationary terms and had incurred no violations. He noted the

agreement with the State regarding early termination. The trial

court transmitted a memorandum stating that “[t]ermination of

probation is a matter of appropriateness” and seeking the State’s

position and a recommendation from the department. The State

responded by acknowledging the agreement and confirming it had

not found any violations by Parson through the first half of his

probation. The department also confirmed that Parson had

completed the terms of his probation. The trial court treated

of probation in either the pronouncement or in the written order.

There notably was no objection at the time of pronouncement.

Moreover, whatever the dissent contends was the actual oral

pronouncement here, it is not the type the supreme court had in

mind when it required, as a matter of judicial policy, that “the

actual oral imposition of sanctions should prevail over any

subsequent written order to the contrary.” State v. Williams, 712

So. 2d 762, 764 (Fla. 1998) (emphasis supplied). It is true “that a

written order must conform to the oral pronouncement . . . because

the written sentence is usually just a record of the actual sentence

required to be pronounced in open court.” Justice v. State, 674 So.

2d 123, 125 (Fla. 1996). It also is true that historically, the

supreme court has noted the constitutional necessity of giving the

defendant notice at the sentencing hearing of the conditions with

which he will have to comply to stay on probation. Williams, 712

So. 2d at 764. There was no additional, unpronounced condition

appearing in the probation order, the violation of which would

have put Parson at risk of being revoked. Instead, he now perceives

the agreement as containing a benefit to him that purportedly

should have been included in the probation order—if that even

would have mattered—but was not. This is not a due-process

claim; it is a claim that the sentencing order should have been

corrected, assuming there was even a pronouncement to be added.

Again, Parson did not object at the time of sentencing to preserve

this question, and he did not and has not sought to correct the

sentencing order at any subsequent point, an effort that likely now

would be untimely in any event.

3

Parson’s correspondence as a motion for early termination but

nevertheless denied the motion without explanation. Parson then

filed a motion—this time through counsel—seeking to enforce the

plea agreement and to terminate probation early. Once again, the

trial court denied the motion without elaboration.

Once Parson sought relief from this court, we issued an

interim writ of mandamus to the trial court to aid in our exercise

of certiorari jurisdiction, requiring the court to prepare an

amended order that provided an explanation for the denial. See

Art. V, § 4(b)(3), Fla. Const. (“A district court of appeal may issue

writs of mandamus, certiorari, prohibition, quo warranto, and

other writs necessary to the complete exercise of its jurisdiction.”

(emphasis supplied)). 2 The trial court complied. The updated order

explained the ruling as follows:

[] In considering Defendant’s two motions for early

termination of probation, this Court considered the facts

of Defendant’s underlying offense; the severity of the

offense; the fact that Defendant received a withhold of

adjudication; and the fact that Defendant scored a prison

sentence. Defendant received a substantial benefit from

avoiding a term of imprisonment and receiving a

withhold of adjudication. Further, because of his

conviction for Traveling to Meet a Minor, Defendant is a

registered sex offender.

[] This Court further notes that although Defendant does

not qualify as a violent felony offender of special concern,

given the nature of his offense, he is similarly situated to

defendants who are given the underlying nature of his

offense.

2 The dissent questions how we could have jurisdiction to issue

this interim writ if we ultimately do not have jurisdiction to grant

relief in certiorari. A court, however, always has jurisdiction to

assess its own jurisdiction. See English v. McCrary, 348 So. 2d 293,

298 (Fla. 1977). The constitutional provision just cited gives us

writ authority to do just that.

4

[] For the foregoing reasons, continued reporting

probation is necessary to protect the community as well

as for the interests of justice.

Parson’s probation having been imposed in 2016, he had no

post-imposition right of action seeking to shorten the supervision

period. See § 948.04(3), Fla. Stat. (2016) (authorizing “the

Department of Corrections [to] recommend early termination of

probation to the court at any time” when the probationer has met

certain criteria (emphasis supplied)); § 948.05, Fla. Stat. (2016)

(authorizing, but not requiring, a trial court to terminate probation

early “when satisfied that its action will be for the best interests of

justice and the welfare of society”); State ex rel. Roberts v. Cochran,

140 So. 2d 597, 599 (Fla. 1962) (noting that “[p]robation is a matter

of grace extended to the offender”); see also Johnston v. State, 202

So. 3d 976, 976 (Fla. 1st DCA 2016) (highlighting the trial court’s

“unbridled discretion to decide whether or not to terminate a

defendant’s probation early”); but cf. ch. 2019-167, § 61, Laws of

Fla. (amending section 948.04(4) and (5), Florida Statutes, to

require, for probation imposed after October 1, 2019, early

termination or conversion to administrative probation if certain

criteria are met, unless the court finds “that continued reporting

probation is necessary to protect the community or the interests of

justice”). Parson’s request essentially was one for the trial court to

show grace by terminating early, in its “unbridled discretion.”

Johnston, 202 So. 3d at 976.

To invoke our certiorari jurisdiction, however, a petitioner

“must identify real injury”—some “substantial invasion of rights”

that is not mere “abstract, hypothetical, or inchoate harm”; many

times, the asserted injury will be a violation of a fundamental

right. Swift Response, LLC v. Routt, 401 So. 3d 640, 643 (Fla. 1st

DCA 2025) (describing the nature of harm required to support

certiorari jurisdiction; quoting Folsom v. Bank of Greenwood, 120

So. 317, 318 (1929); and citing Kilgore v. Bird, 6 So. 2d 541, 544

(1942) and other supreme court decisions). Parson’s claim of harm

relies on his contention that the State’s plea agreement with him

bound the trial court—such that he had a right to the trial court’s

early termination if, as he reads the terms, he satisfied all

probation terms and conditions.

5

The contention runs directly counter to what the supreme

court repeatedly has said on this issue—that a trial court cannot

and will not be bound by a plea agreement, even when the court

has approved or accepted it. See, e.g., Tilghman v. Culver, 99 So.

2d 282, 286 (Fla. 1957) (“Courts cannot bind themselves to

agreements such as that shown by this record.”); Davis v. State,

308 So. 2d 27, 29 (Fla. 1975) (holding that a trial court “is never

bound in sentencing by the negotiations which occur between the

prosecuting attorney and the defense counsel” and that “plea

discussions [cannot] be specifically enforced against a court”);

Goins v. State, 672 So. 2d 30, 31 (Fla. 1996) (“Even though the plea

has been accepted and regardless of whether the judge

participated in the negotiations, the judge is never bound to honor

the agreement.”). 3

3 The dissent purports to distinguish these supreme court

decisions by characterizing them as applying “only when the plea

agreement has not yet been accepted by the trial court.” Yet all

three involved circumstances where the trial judge had in fact

accepted the plea. In Goins, “[t]he court accepted the plea as

knowingly and voluntarily entered” and sentenced the defendant

to considerably more prison time than what the agreement

reflected. 672 So. 2d at 31. As noted in the parenthetical above, the

court was quite clear that “[e]ven though the plea has been

accepted,” the trial court is “never bound to honor the agreement.”

Id. (emphases supplied). Same goes for Davis: though the trial

judge “participated in or tentatively approved a plea bargain,” to

the point that the judge’s “indication of leniency is the [o]nly

inducement” for the defendant’s plea, “the court is not bound by it.”

308 So. 2d at 29 (emphasis supplied). “Plea discussions can[not] be

specifically enforced against a court.” Id. Finally, in Tilghman, the

trial judge did not just accept the plea agreement; the judge

“bargained with” the defendant and “reached an agreement with

him.” 99 So. 2d at 286. Still, any promise made by the judge was

not enforceable because—to repeat, once again—“[c]ourts cannot

bind themselves to agreements.” Id. Contrary to the dissent’s

suggestion, whether the judge has accepted a plea agreement is of

no moment to establishing when the trial court is bound by it—

which is never.

6

The dissenting opinion opens by seemingly conflating two

distinct concepts: on the one hand, a trial court’s obligation to

enforce a plea agreement against the State—an unremarkable

proposition; on the other, binding a trial court to a plea

agreement’s terms and enforcing them against the court—a

proposition finding absolutely no support in supreme court

precedent. The one supreme court decision that the dissent cites

for support did not even involve enforcement of an agreement

against the State, let alone the trial court. See McCoy v. State, 599

So. 2d 645 (Fla. 1992). In that case, the trial court had vacated the

defendant’s plea and imposed a harsher sentence for his failure to

testify “in accordance with prior statements given to law

enforcement officials,” and the supreme court held the lower court

“could not vacate the judgment and sentence” without the State

first presenting evidence of the “specific terms of the agreement”

that were breached. Id. at 646, 648. McCoy, at best, spells out how

the State can seek enforcement of a plea agreement against the

defendant. See id. at 649 (adopting interim procedure “that would

provide the prosecution with a method of addressing a defendant’s

noncompliance with the specific terms of a plea agreement”).

Simons, also cited by the dissent, bears out the point that

agreements are only enforced against the defendant or the State.

See State v. Simons, 22 So. 3d 734 (Fla. 1st DCA 2009). The pretrial

intervention (or “PTI”) at issue in the case was a program run by

the local state attorney. See id. at 735. The prosecutor promised,

on behalf of the State, that if the defendant completed the

program, the prosecutor would dismiss the charges. Id. The

specific performance to which the defendant was entitled was

against the State, not the court—the ability to dismiss charges

being in the prosecutor’s hands. Id. at 736. Enforcing an agreement

between the State and the defendant was not even that

remarkable:

The trial judge did not break any new ground by

enforcing the agreement the parties made in this case. To

the contrary, it is a 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.

7

Id. (emphases supplied). Notably, there is not a third option:

somehow enforcement of the plea agreement against the court,

even though it is not a party to that agreement.

The other district court decisions the dissent cites either

support enforcement of plea agreements against the State (as in

Simons) or simply conflict with the supreme court decisions just

discussed precluding a trial court from being a party to such

agreements. To be clear, Parson did not ask the trial court to

enforce the agreement against the State; the State did the most it

could under the agreement—not oppose Parson’s request for early

termination if he had satisfied all the conditions. Because the State

had no authority to terminate his probation early, there was no

further action that could be compelled from it—nothing to enforce

against the State. The trial court’s denial of Parson’s request for

early termination, then, cannot be characterized as a refusal to

enforce the agreement.

This leaves Parson with a claim that the judge somehow erred

by refusing to abide by a term in the parties’ agreement (an

agreement to which the trial court was not a party) and asking us,

essentially, to order him to terminate probation. The dissent has

no problem with this, but we choose to follow the supreme court’s

decisions repeatedly reminding us that a plea agreement, like the

one here, is signed by and is binding on the State and the

defendant—no more, no less. If the trial court cannot be made a

party to the agreement—and there is nothing to suggest the

sentencing judge intended it to be—then the judge’s discretion

truly is not cabined by any early termination provision in it, and

there could be no harm stemming from its proper exercise of that

discretion.

Arguably, Parson could have supported certiorari jurisdiction

with a contention that the judge refused even to consider the

request for grace based on a constitutionally or statutorily

impermissible factor. But he makes no such assertion in his

petition. The detailed explanation in response to our interim writ

reveals no such improper consideration. There being no apparent

right in play, Parson fails to identify a cognizable harm that could

be remedied in certiorari. Absent cognizable harm, we have no

jurisdiction to proceed further.

8

DISMISSED.

WINOKUR, J., concurs with an opinion; BILBREY, J., dissents with

an opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

WINOKUR, J., concurring.

While I agree with all aspects of our opinion, I write to

emphasize two points.

First, I repeat the observation that the probation order

following the plea agreement made no reference to early

termination. If Parson had objected to the absence of this term

from the probation order, he was free to file a motion to withdraw

his plea, or a motion alleging that his plea was involuntary. See

Fla. R. Crim. P. 3.170(l), 3.850(a)(5). Without this term in the

probation order, Parson is not actually challenging the later court’s

failure to comply with the sentence the earlier court actually

imposed. Instead, he is challenging the later court’s failure to abide

by a prior agreement between Parson and the State, an agreement

to which the court was not, nor could be, a party.

I submit that a court does not lose its discretion whether to

terminate probation early even if the sentencing order calls for

early termination at a certain time. But we need not decide this

matter because it did not actually occur here. The probation order

does not include an early termination provision, despite the plea

agreement—to which, again, the court was not a party. This fact

alone supports dismissal of Parson’s petition.

Second, I disagree with the dissent’s contention that the

decision here could have “deleterious consequences for the

administration of justice” because it could deter defendants from

executing plea agreements if a future judge is not bound to

9

terminate probation in accordance with the agreement. A

sentencing judge can incentivize a defendant to comply with

probation terms without removing a future judge’s discretion to

terminate probation. In this case, if the parties wanted the

defendant to serve five years probation, provided no violations

occur, they could have agreed for him to be sentenced to five years

probation. The incentive to comply with the terms of probation is

the possibility of revocation, extension, or modification of

probation, in the event of noncompliance. See § 948.06(2), Fla.

Stat. (permitting a court to revoke, modify or continue probation

upon violation); Patrick v. State, 336 So. 2d 1253, 1254 (Fla. 1st

DCA 1976) (noting that section 948.06 permits extension of the

period of probation). We need not, and in my view cannot, remove

a judge’s discretion to deny a motion to terminate probation in

order to facilitate plea agreements.

With these observations, I concur in the decision to dismiss

the petition.

BILBREY, J., dissenting.

“A plea agreement is a contract and the rules of contract law

are applicable to plea agreements.” Churchill v. State, 219 So. 14,

18 (Fla. 2017) (quoting Garcia v. State, 722 So. 2d 905, 907 (Fla.

3d DCA 1998)). Once a plea agreement calling for a specific

sentence has been accepted by a trial court must the court comply

with it? “Yes” say the United States and Florida Supreme Courts

as well as Florida district courts of appeal. And when a trial court

refuses to comply with agreed upon sentence in an accepted plea

agreement does the wronged party have a remedy in the appellate

court? “Once again yes” according to the United States and Florida

Supreme Courts and the district courts. Yet here, a year and eight

months after we ordered the successor trial judge to explain why

he would not enforce the agreed upon sentence in the accepted plea

agreement, the majority now holds that this court has no

jurisdiction to compel the judge to enforce that agreement. This is

plainly wrong, contrary to our precedent, and has the potential to

impact the administration of justice in our district, so I must

dissent.

10

As the majority opinion points out, the plea agreement

between Michael Parson and the State clearly provided that

probation would “EARLY TERM AT 5 YEARS.” Before the

sentencing judge accepted the plea, a plea colloquy was conducted

in open court. There, Parson acknowledged that “[t]he State has

also agreed to an early termination at five years, if you complete

everything and do everything you’re supposed to. No violations or

offenses during that time. Okay? Of course, that would have to be

approved by the court. Okay?”

After the colloquy was conducted, the sentencing judge orally

accepted the plea and signed an order accepting the written plea

agreement. The judge sentenced Parson in accordance with the

plea agreement. In accepting the plea and allowing a withhold of

adjudication the sentencing judge noted, “And two findings I could

make is the legitimate, uncoerced plea bargain, which would be

number 1. Because the State is consenting to that. And 2, the

offense was committed in an unsophisticated manner. It was an

isolated occurrence for which the defendant has shown remorse.” 1

After successfully completing five years of probation, Parson

wrote to the successor trial judge and requested early termination

as provided by the plea agreement. The judge construed the letter

as a pro se motion. The judge directed a response from the State.

The State responded writing, “The State has found no violations,

and the Defendant is over the half way point of his 10 year term.”

Nonetheless, the trial court denied early termination.

Through counsel, Parson then formally moved for early

termination of probation. Along with referencing the State’s

response, Parson’s counsel attached an email from Parson’s

probation officer “that the offender has completed all conditions,

1 The majority and concurring opinions both point out that

the order of probation does not include the agreement to the early

termination of probation. This is immaterial since “a court’s oral

pronouncement of sentence controls over the written document.”

Ashley v. State, 850 So. 2d 1265, 1268 (Fla. 2003). Here, the trial

court pronounced that he was “going to follow the negotiated

disposition in this case” that called for early termination of

probation.

11

paid their monies, passed their drug screens, and paid their

monetary obligation in full.” In March 2023, the successor judge

again denied the motion. Parson then brought the petition for writ

of certiorari that is before us.

In response to the petition, in October 2023 we issued an

interim writ of mandamus to the trial court. Parson v. State, 386

So. 3d 591 (Fla. 1st DCA 2023). There, writing for the same panel,

Judge Tanenbaum stated:

From what we can tell, the trial court here denied

both requests for early termination without a hearing, so

we have no transcript to consider. And as we already

noted, there is no reasoning for the denials provided in

the trial court’s orders. To aid in our consideration of

whether to exercise our jurisdiction to grant certiorari

relief, on our own motion, we exercise our authority under

the Florida Constitution to issue an interim writ of

mandamus to the trial court. See Art. V, § 4(b)(3), Fla.

Const. (“A district court of appeal may issue writs of

mandamus, certiorari, prohibition, quo warranto, and

other writs necessary to the complete exercise of its

jurisdiction.” (emphasis supplied)). Under that writ, the

trial court shall issue an amended order denying Parson’s

motion for early termination of probation, which must

include the court’s reasoning for its denial of the motion. 2

Id. at 593.

2 If, as the majority opinion holds, we have no jurisdiction to

compel the trial court to comply with the plea agreement’s

requirement that probation terminate after five years, then what

was our basis for entering this interim writ of mandamus?

Furthermore, if early termination of probation is a “matter of

grace” even when a plea agreement requires early termination,

what basis did we have to inquire into the trial court’s rationale

for denying early termination? Either we were wrong to issue the

interim writ of mandamus, or the majority is wrong now. I submit

that it is the later.

12

The successor trial judge complied with our interim writ of

mandamus in November 2023. In explaining his denial of early

termination, the judge stated, contrary to the plea agreement, that

“early termination of the probation would be up to the court’s

discretion.” The judge did not find or even allege that Parson had

not completed all required terms of probation. The successor judge

then stated:

In considering Defendant’s two motions for early

termination of probation, this Court considered the facts

of Defendant’s underlying offense; the severity of the

offense; the fact that Defendant received a withhold of

adjudication; and the fact that Defendant scored a prison

sentence. Defendant received a substantial benefit from

avoiding a term of imprisonment and receiving a

withhold of adjudication. Further, because of his

conviction for Traveling to Meet a Minor, Defendant is a

registered sex offender.

This Court further notes that although Defendant

does not qualify as a violent felony offender of special

concern, given the nature of his offense, he is similarly

situated to defendants who are given the underlying

nature of his offense.

(footnotes omitted).

All the successor judge’s reasons for denying early

termination were known by the sentencing judge at the time of

sentencing. These would have been valid reasons for the

sentencing judge to reject the plea agreement, but they cannot be

used long after the fact by the successor judge to refuse to enforce

the plea agreement.

Now, a year and seven months after the successor judge

issued his amended order denying termination of probation in

response to our writ, and eight years and eight months after

Parson entered the plea agreement, the majority decides that we

cannot even consider the trial court’s rationale for disregarding the

plea agreement accepted by the predecessor judge. This is

incorrect.

13

“Bargained guilty pleas, then, are in large part similar to a

contract between society and an accused, entered into on the basis

of a perceived ‘mutuality of advantage.’” Brown v. State, 367 So.

2d 616, 622 (Fla. 1979) (quoting Brady v. United States, 397 U.S.

742, 752 (1970)). Once a plea agreement with a specified sentence

is entered and accepted by a trial court, the court is bound by

it. See Santobello v. New York, 404 U.S. 257, 262 (1971) (“[A]

constant factor is that when a plea rests in any significant degree

on a promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise must

be fulfilled.”); Johnson v. State, 238 So. 3d 726, 738 (Fla. 2018)

(“Nevertheless, general contract principles govern the execution of

agreements between a defendant and the State.”); Cox v. State, 35

So. 3d 47, 48 (Fla. 1st DCA 2010) (“It is well established that a plea

agreement is a contract.”).

The Florida Supreme Court has required the State to abide by

plea agreements that the trial court has accepted. See Johnson,

238 So. 3d at 738; Churchill, 219 So. 3d at 17 (Fla. 2017); McCoy

v. State, 599 So. 2d 645, 650 (Fla. 1992). Even so, the majority

opinion contends that a trial court is never bound by a plea

agreement and cites Florida Supreme Court cases to try to support

this proposition. This is an overly broad statement by the majority

and whether a trial court is bound to impose a particular sentence

depends on the terms of the agreement and the timing of

sentencing. 3 The Court has discussed these nuances:

3 Once accepted by a trial judge, a plea agreement is binding.

See Fla. R. Crim. P. 3.172(g) (“No plea offer or negotiation is

binding until it is accepted by the trial judge formally after making

all the inquiries, advisements, and determinations required by this

rule.”). Rule 3.172(g) does not say binding only as to the State and

defendant. See Campbell v. State, 125 So. 3d 733, 741 (Fla. 2013)

(disagreeing with the idea that following sentencing “the judge or

the State would be allowed to challenge the plea agreement after

the defendant has already partially performed his or her duties

under the agreement”). And the court cannot increase the

sentence after sentencing as discussed below.

14

There are many varieties of plea agreements.

Negotiations often take place only between the state and

the defendant, although in some instances the trial judge

participates in the negotiations. Even though the plea

has been accepted and regardless of whether the judge

participated in the negotiations, the judge is never bound

to honor the agreement. Davis v. State, 308 So.2d 27

(Fla.1975); Brown v. State, 245 So.2d 41 (Fla.1971).

However, when there has been a firm agreement for a

specified sentence and the judge determines to impose a

greater sentence, the defendant has the right to withdraw

the plea. Fla.R.Crim.P. 3.172(g). On the other hand, if

the agreement only calls for the state to recommend a

particular sentence and it is clear that the trial judge may

impose a greater sentence, the defendant cannot

withdraw the plea if a greater sentence is imposed so long

as the state carries out its promise. State v. Adams, 342

So.2d 818 (Fla. 1977).

Goins v. State, 672 So. 2d 30, 31 (Fla. 1996); see also Rollman v.

State, 887 So. 2d 1233, 1235 (Fla. 2004) (“We continue to agree that

a trial court retains the authority to alter a prior plea arrangement

up until the time sentence is imposed, so long as the trial court

provides the defendant an opportunity to withdraw any plea that

was entered in reliance on the promised sentence.”).

A trial judge can reject a proposed sentence in a plea

agreement between the State and a defendant as too strict or too

lenient. See Fla. R. Crim. P. 3.171(d), 3.172(h); State v. Rojas, 356

So. 3d 876, 883–84 (Fla. 3d DCA 2023); King v. State, 578 So. 2d

23, 24 (Fla. 4th DCA 1991). And even after a plea agreement is

accepted by a defendant, if a trial judge determines that he or she

cannot sentence a defendant in accordance with an agreement, the

judge must allow the defendant to withdraw the plea. See Fla. R.

Crim. P. 3.172(h); Davis v. State, 308 So. 2d 27, 29 (Fla. 1975);

King, 578 So. 2d at 24. But once a plea agreement with a specified

sentence has been accepted by the trial court, the State, the

defendant, and the court are bound by the agreement. See McCoy,

599 So. 2d at 649 (requiring compliance with an accepted plea

agreement when a defendant testified as provided by the

agreement); Hoffman v. State, 474 So. 2d 1178, 1182 (Fla. 1985)

15

(“A defendant cannot be allowed to arrange a plea bargain, back

out of his part of the bargain, and yet insist the prosecutor uphold

his end of the agreement.”); Mack v. State, 955 So. 2d 51, 56–57

(Fla. 1st DCA 2007) (citations omitted) (“While the State is

unquestionably bound by any plea agreement that induces a plea

of guilty or nolo contendere… so is the defense.”).

And not just the State and defendant are bound by the

agreement. The trial court must enforce a plea agreement calling

for a specified sentence once the plea agreement has been accepted

by the court. See McCoy, 599 So. 2d at 650 (remanding case to

reimpose original sentence when State failed to show that

defendant violated plea agreement); Rojas, 356 So. 3d at 884

(preventing a trial court from mitigating sentence in violation of a

plea agreement); Devoid v. State, 987 So. 2d 219, 220 (Fla. 5th DCA

2008) (requiring the trial court to resentence a defendant “in a

manner that would have effectuated the plea agreement”);

Williams v. Dep’t of Corrs., 734 So. 2d 1132, 1133 (Fla. 3d DCA

1999) (same); Davis v. Singletary, 659 So. 2d 1126 (Fla. 2d DCA

1995) (same).

This court has also enforced plea agreements. In Wright v.

State, 115 So. 3d 1098, 1099 (Fla. 1st 2013), we held that “[a]

defendant is entitled to enforcement of the [accepted plea]

agreement if the forfeiture of gain time frustrated the intent of the

plea agreement.” See also Chase v. State, 57 So. 3d 898, 899 (Fla.

1st DCA 2011) (same).

Our opinion in State v. Simons, 22 So. 3d 734 (Fla. 1st DCA

2009), is analogous to what we have here. There, the parties

entered into a settlement agreement to resolve criminal charges

along with a related civil case. Id. at 735. The agreement called

for pretrial intervention (PTI) for the defendant. Id. The trial

court approved the agreement and directed the parties to comply.

Id. After Simons paid restitution, the State and the victim tried to

back out of the agreement for PTI. Id. We noted that normally the

decision whether to allow PTI rests solely with the State. Id. at

736. But citing Santobello and other cases, we held that the

agreement was binding on the State. “If that were the case [that

an agreement was not binding], the settlement agreement would

be nothing more than a set of illusory promises. The agreement

16

would be enforceable by the state and the victim but not by the

defendant.” Simons, 22 So. 3d at 736. “The incentive to settle a

case by plea bargaining or by an agreement not requiring a plea

would quickly disappear if one party could renege on an agreement

without any consequence.” Id. at 737.

In Simons, we noted that a court could allow a defendant to

withdraw a plea if the plea agreement was breached. Id. at 736–

37. But we held that “specific performance is a proper remedy if

the defendant has partly performed the agreement.” Id. at 736

(citing Williams v. State, 341 So. 2d 214 (Fla. 2d DCA 1976); Buffa

v. State, 641 So. 2d 474 (Fla. 3d DCA 1994)). “When an agreement

with the defendant has not been fulfilled, the defendant is entitled

to specific performance of the unfulfilled promise or to withdrawal

of her guilty plea.” Hunt v. State, 613 So. 2d 893, 898 (Fla. 1992)

(citing Santobello, 404 U.S. at 263).

The majority opinion also claims that since early termination

of probation is a matter of grace, we have no jurisdiction to enforce

an agreement calling for early termination. But the general rule

that denial of early termination of probation cannot be reviewed

by an appellate court applies only when there is not an agreement

mandating early termination. The specific agreement between the

parties, not the general rule about early termination applies here.

In that way this is like our decision in Simons where normally the

decision to enter into a PTI agreement rested solely with the State,

but once an agreement was approved by the court the parties had

to comply with the agreement and the court was right to enforce

it.

If a defendant breaches the probationary requirements of a

plea agreement, the State can enforce the agreement using the

violation of probation procedures in section 948.06, Florida

Statutes. But without a violation of probation, a sentence cannot

be increased by the trial court after sentencing. “Once a sentence

has been imposed and the person begins to serve the sentence, that

sentence may not be increased without running afoul of double

jeopardy principles. . . . To do so is a clear violation of the Double

Jeopardy Clause, which prohibits multiple punishment for the

same offense.” Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003)

(citations omitted). By not allowing early termination as provided

17

for in the plea agreement, and requiring Parson to serve three

years and eight months of additional probation so far and

potentially five years of probation beyond what he agreed to, the

trial court has increased Parson sentence and violated double

jeopardy principles. Compounding the problem, the majority is

unwilling to enforce the plain terms of the agreement.

“[A] trial court may not unilaterally modify a previously

imposed negotiated sentence between a defendant and the State.”

State v. Hall, 351 So. 3d 654, 656 (Fla. 2d DCA 2022). The trial

judge was allowed only to verify compliance with the plea

agreement by Parson to allow for early termination according to

the plea agreement.

We hold that where a trial court imposes a

probationary period with special conditions and further

offers early termination of that probation upon successful

completion of all such conditions, the early termination

provision is not self-executing. If and when the special

conditions are completed before the natural expiration of

the probationary sentence, either the defendant or the

Department of Corrections must advise the trial court

that all such conditions have been satisfied and request

early termination. Once the court has confirmed that all

special conditions have been fulfilled it will then

terminate the probation.

Hepburn v. State, 780 So. 2d 326, 328 (Fla. 3d DCA 2001) (citations

omitted).

The successor judge’s amended order fails to justify denial of

early termination of probation. He reads the plea agreement to

grant him discretion to deny termination, but that is not a plain

reading of the agreement or the plea colloquy. The amended order

says, “any early termination of the probation would be up to the

court’s discretion.” This differs from the actual language of the

plea agreement that stated, “The State has also agreed to an early

termination at five years, if you complete everything and do

everything you’re supposed to.” Parson completed every term of

probation and had no violations. And the statement during the

plea colloquy that early termination of probation “would have to be

approved by the court” did not give the court any discretion.

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Rather, it just meant that probation did not automatically

terminate, and the trial court would have the ability to make sure

Parson had completed the conditions of probation before

termination. See Mack, 955 So. 2d at 54 (citing Quarterman v.

State, 527 So.2d 1380, 1382 (Fla.1988)) (“Our supreme court has

held that plea agreements may contain conditions that depend on

later fact finding.”).

“If the state and the defendant agree that certain matters will

be left for the trial court to determine in its sole discretion, the

agreement should plainly say so. A court may not look beyond the

language employed in a plea agreement to supply terms which

could or should have been included, but for one reason or another,

were not.” Deponte v. State, 670 So. 2d 176, 177 (Fla. 4th DCA

1996). The successor judge erroneously adds language to the plea

agreement and the majority approves of that error.

Finally, we have jurisdiction to remedy the successor judge’s

error. “It is well settled that to obtain a writ of certiorari, there

must exist ‘(1) a departure from the essential requirements of the

law, (2) resulting in material injury for the remainder of the case

(3) that cannot be corrected on postjudgment appeal.’” Reeves v.

Fleetwood Homes of Fla., Inc., 889 So. 2d 812 (Fla. 2004) (quoting

Bd. of Regents v. Snyder, 826 So. 2d 382, 287 (Fla. 2d DCA 2002)).

First, as shown above, failure to enforce the plain terms of an

accepted plea agreement following sentencing departs from the

essential requirements of law. Second, Parson has been injured by

having to remain on probation, along with the associated costs and

restrictions on his liberty, for three years and eight months longer

than he has agreed to so far. Increasing his sentence is a Double

Jeopardy violation. See Ashley, 850 So. 2d at 1267. Third, we have

held that denial of a motion for early termination is not an

appealable final order, so the third prong to establish our certiorari

jurisdiction is present. See Johnston v. State, 202 So. 3d 976 (Fla.

1st DCA 2016). 4

4 Our holding in Johnston was based on Ziegler v. State, 380

So. 2d 564 (Fla. 3d DCA 1980). In Ziegler, the court said that since

early termination of probation was “entirely a matter of grace, we

hold that an order denying that relief is non-appealable.” Id. at

19

I would grant the petition and direct the successor judge to

comply with the binding agreement and immediately terminate

Parson’s probation. The majority’s failure to take this simple

action has potentially deleterious consequences for the

administration of justice. An estimated 90 to 95 percent of

criminal cases are resolved through a plea agreement between the

prosecutor and defense. Devers, Plea and Charge Bargaining,

(Jan. 24, 2011), https://bja.ojp.gov/sites/g/files/xyckuh186/files/me

dia/document/pleabargainingresearchsummary.pdf (last visited

Jun. 18, 2025). A defendant’s violation of probation can be

sanctioned by the State, but now a defendant has no right to

enforce the plea agreement and require probation terminate

despite full compliance by the defendant. Why would a defendant

be inclined to execute an agreement if the agreement was not

mutually binding once accepted by the sentencing court? The court

warned about this in Simons, but the majority disregards this

warning in violation of established contract principles. It is clearly

wrong that a defendant cannot enforce an accepted plea agreement

requiring early termination of probation, and I hope this error will

be corrected by this court en banc or a higher court.

_____________________________

Richard E. Hornsby of Richard E. Hornsby, P.A., Orlando, for

Petitioner.

James Uthmeier, Attorney General, and Adam Wilson, Assistant

Attorney General, Tallahassee, for Respondent.

564. As explained above, complying with an accepted plea

agreement after sentencing is not a matter of grace but of right. I

would argue that we have appellate jurisdiction under rule

9.140(b)(1)(D), Florida Rules of Appellate Procedure, since this is

an order entered after final judgment. But since the majority

proceeds along the “matter of grace” line of thinking, there is no

right to appeal. Accordingly, the error here cannot be corrected on

a post judgment appeal, so we have certiorari jurisdiction.

Otherwise, we should have converted Parson’s petition to a direct

appeal shortly after it was filed over two years ago.

20