Petition — Shahid v. Florida

32-186

IN THE SUPREME COURT OF THE UN

FALL TERM, NINETEEN HUNDRED AND

CASE NUMBER

ERNEST WADERE SHAHID, JR.,

PETITIONER.

versus

STATE OF FLORIDA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORAR! TO

THE FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

M. JOSEPH LIEB, JR.

SYPRETT, MESHAD, RESNICK & LIEB, P.A.

1900 RINGLING BOULEVARD

POST OFFICE BOX 1238

SARASOTA, FLORIDA 33578

TELEPHONE (813) 365-7171

COUNSEL FOR PETITIONER

TABLE OF CONTENTS

Table Of Contents ...........cceecceens

Citation Of Authorities .................

Petition For Writ of Certiorari ...........

A ae) eg ane ae

Pe RS Se ee ee

Questions Presented For Review:

WHETHER THE FIRST DISTRICT

COURT OF APPEALS’ DECISION IN

SHAHID V. STATE IS IN EXPRESS

CONFLICT WITH THIS COURT'S

DECISION IN SANTOBELLO V. NEW

YORK, 404 U.S. 257 ?............

WHETHER FLA.R.CRIM.P. 3.172(i),

WHICH REQUIRES A DEFENDANT

TO SHOW THAT HE WAS PRE-

JUDICED BY THE VIOLATION OF A

PLEA BARGAIN, CIRCUMVENTS

THE CONSTITUTIONAL SAFE-

GUARDS ERECTED BY THIS COURT

IN ITS DECISION IN SANTOBELLO

V. NEW YORK, 404 U.S. 257 ?.....

Consitutional and Statutory Provisions

PAGE NO.

PAGE NO.

Reasons For Granting The Writ:

| THE FIRST DISTRICT COURT OF

APPEALS’ DECISION IN SHAHID V.

STATE, IS IN EXPRESS CONFLICT

WITH THIS COURT'S DECISION IN

SANTOBELLO V. NEW YORK. ...... "1

| FLA.R.CRIM.P. 3.172(1), WHICH RE-

QUIRES A DEFENDENT TO SHOW

THAT HE WAS PREJUDICED BY THE

VIOLATION OF A PLEA

BARGAIN, CIRCUMVENTS THE

CONSTITUTIONAL SAFEGUARDS

ERECTED BY THIS COURT IN

SANTOBELLO V. NEW YORK 404

gy BIS, Ry SU ie 14

SRO (LS a RET 18

Certificate Of Service .................. 19

CITATION OF AUTHORITIES

CASES CITED PAGE NO.

Brown v. State,

206 So.2d 377 (Fla. 1968)........... 11

Duncan v. Louisianna,

391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d

SE RUINS i'd ae: dole oa onuch be bg' ve's 15

Egan v. City of Aurora,

81 S.Ct. 684, 365 U.S. 514, 5 L.Ed.2d

RRS an ae ae 13

Jackson v. Denno,

378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d

boa Sp chdbccianebe cet 17

Jenkins v. State,

385 So.2d 1356 (Fila. 1980).......... 2,10

Kercheval v. United States

274 U.S. 220, 47 S.Ct. 582, 71 L.Ed.

1009 (1927}..... et eceeeebeeeeeeees 16

Machibroda v. United States,

82 S.Ct. 510, 368 U.S. 487 (1962)..... 15

Malloy v. f

378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d

SIN ss danse oOo che bs BRS ee 16

Nash v. Florida Industrial Commission

389 U.S. 235, 88 S.Ct. 362, 19 L.Ed.2d

MEME. oak 5s. cans Sees. 2

630 F.2d 206 (ard Cir. 1980)......... 13

sill-

ae

CASES CITED PAGE NO.

Pointer v. Texas,

380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d

Es hs dis Honk 6 des Cab cdeces 15

Santobello v. New Yo

404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d

My CIOs Foc HURER EWES bes bo 00 we 2,3,11,12

13,14,15,17

Shahid v. State,

So.2d _______ (Fla. ist DCA

TE aah iid o is ee POEUS Ee tak coves 11,12,15,18

United Gas Pipeline Co. v. Memphis Light,

Gas, & Water Division,

358 U.S. 103, 79 S.Ct. 194 (1958)..... 13

Wilkerson v. United States,

365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d

633, reh. den., 365 U.S. 890, 81 S.Ct.

1037, 6 L.Ed.2d 200 (1961) .......... 13

Williams v. Florida,

399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d

ee eh EEO OSE RE eee 2

Williams v. Georgia,

75 S.Ct. 814, 349 U.S. 375, 99 L.Ed.

Ty « enBCRE RRs 60Ab KO-0k > 00 e 13

In re Winship,

397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d

ot ery rr > ee 16

-iv-

IN THE SUPREME COURT OF THE UNITED STATES

FALL TERM, NINETEEN HUNDRED AND EIGHTY-TWO

CASE NUMBER

ERNEST WADERE SHAHID, JR.,

versus

STATE OF FLORIDA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

The Petitioner, ERNEST WADERE SHAHID, JR., by

and through his undersigned counsel, respectfully

prays that a Writ Of Certiorari issue to review the judge-

ment and decision of the District Court of Appeal of

Florida, First District, entered in these proceedings on

the 27th day of May, 1982.

OPINION BELOW

The opinion of the District Court of Appeai of

Florida, First District, is not reported at the present

-1-

time, but is included in the Appendix hereto. The deci-

sion of the Circuit Court in and for the First Judicial

Circuit of Florida is unreported, but included in the Ap-

pendix hereto.

JURISDICTION

The judgment and decision of the District Court

of Appeal of Florida, First District, was entered on May

27, 1982. This petition for writ of certiorari is timely fil-

ed within sixty (60) days of the judgment. The jurisdic-

tion of this Court is invoked pursuant to 28 U.S.C. §

1257(3). See Williams v. Florida, 399 U.S. 78 (1970);

Nash v. Florida industrial Commission, 389 U.S. 235

(1967); Jenkins v. State, 385 So.2d 1356 (Fla. 1980).

QUESTION S PRESENTED FOR REVIEW

|

WHETHER THE FIRST DISTRICT COURT OF AP-

PEALS’ DECISION IN SHAHID V. STATE IS IN EX-

PRESS CONFLICT WITH THIS COURT'S DECI-

SION IN SANTOBELLO V. NEW YORK, 404 U.S.

257 ?

WHETHER FLA.R.CRIM.P. 3.172(i), WHICH RE-

QUIRES A DEFENDANT TO SHOW THAT HE WAS

PREJUDICED BY THE VIOLATION OF A PLEA

BARGAIN, CIRCUMVENTS THE CONSTITU-

TIONAL SAFEGUARDS ERECTED BY THIS

COURT IN ITS DECISIONS IN SANTOBELLO V.

2

NEW YORK, 404 U.S. 257 ?

ARTICLE Il

SECTION 1. The judicial power of the United

States shall! be vested in one Supreme Court, and

such inferior courts as the Congress may from

time to time establish ...

SECTION 2. The judicial power shall extend

to all cases, in law and equity, arising under this

Constitution, and the laws of the United States ...

AMENDMENT V

No person shall be held to answer for a

capital, or otherwise infamous crime, ... nor be

deprived of life, liberty, or property, without due

process of law; ...

AMENDMENT Vi

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the ac-

cusation; to be confronted with the witnesses

against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the

3

assistance of counsel for his defense.

AMENDMENT XIV

SECTION 1. All persons born or naturalized

in the United States, and subject to the jurisdic-

tion thereof, are citizens of the United States and

the State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States, nor shall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

FLORIDA RULES OF CRIMINAL PROCEDURE

RULE 3.171

PLEA DISCUSSIONS AND AGREEMENTS

(a) In General. Ultimate responsibility for

sentence determination rests with the trial judge.

However, the prosecuting attorney, the defense at-

torney, or the defendant, when representing

himself, are encouraged to discuss and to agree

on pleas which may be entered by a defendant.

Such discussion and agreement must be con-

ducted with the defendant's counsel! .... .

(b) Responsibilities of the Prosecuting

Attorney.

(1) A prosecuting attorney may:

(B) Make a recommendation, or agree not to

oppose the defendant's request for a particular

sentence, with the understanding that such

recommendation or request shail not be binding

4

(d) Responsibilities of the Trial Judge. After

an agreement on a plea has been reached, the trial

judge may have made known to him the agree-

ment and reasons therefor prior to the acceptance

of the plea. Thereafter, he shall advise the parties

of whether other factors (unknown at the time) may

make his concurrence impossible.

FLORIDA RULES OF CRIMINAL PROCEDURE

RULE 3.172 ACCEPTANCE OF GUILTY

OR NOLO CONTENDERE

(a) Before accepting a plea of guilty or nolo

contendere the trial judge shall satisfy himself that

the plea is voluntarily entered . . .

(c) Except where a defendant is not present

for a plea, pursuant to the provisions of Rule

3.180(c), the trial judge should, when determining

voluntariness, place the defendant under oath and

shall address the defendant personally and shall

determine that he understands the following:

(vil) The complete terms of any plea agree-

ment, including specifically all obligations the

defendant will incur as a result.

(i) Failure to follow any of the procedures in

this Rule shali not render a plea void absent a

showing of prejudice.

STATEMENT OF FACT

The Petitioner was charged, by direct criminal in-

formation with, “Trafficking In Cocaine” in violation of

Sec. 893.135 (1b) Fla.Stat. (1981) and “Possession Of

4

Hashish” in violation of Sec. 893.13(1)/e) Fia.Stat.

(1981) in the First Judicial Circuit Court of the State

of Florida in and for Okaloosa County on March 6,

1981 (A. 1-2).

The Petitioner appeared before the Honorable G.

Robert Barron, Circuit Judge in the Okaloosa Coun-

ty Courthouse on March 16, 1981, for arraignment on

the foregoing charges (A. 3). Pursuant to plea negotia-

tions between the Petitioner's attorney, J. LaDon

Dewrell, and the Assistant State’s Attorney, Keith

Brace, the Petitioner tendered a plea of nolo con-

tendere to the aforesaid charges (A. 4). In return for

his plea, the State agreed to stand mute regarding

sentence (A. 7, 24), and to nollie prosequi ali lesser

offenses arising out of the charged transaction (A.

4-6). After the Petitioner entered his plea, the pro-

secutor violated his plea agreement to stand mute

regarding sentence, when the following colloquy

occurred:

JUDGE: And there is no agreement between

the defense and the State as to the sentence

which could be imposed upon this defendant,

the sentence being solely in the discretion of the

Court? Is that correct?

MR. DEWRELL: That’s correct your Honor.

MR. BRACE: It is understood by the State

that is within the discretion of the Court. It is fur-

ther understood by the State that the defendant

is going to receive the maximum sentence per-

missible under law, that being 30 years on the

trafficking and five years on the possession.

JUDGE: Mr. Shahid, do you understand the

6-

terms and conditions of the plea so far announc-

ed by your counsel?

MR. DEWRELL: No sir, he does not because

Mr. Brace has just perhaps unintentionally, as

my client pointed to me violated one of the

tenants of our agreement; specifically, that the

State would stand mute as to sentencing in this

cause and that would be a matter solely within

the discretion of the Court. If | am wrong, cor-

rect me, Keith.

MR. BRACE: That may well be, because

negotiations have been going on for a week and

the terms of the negotiation have changed dai-

ly. However, | don’t think it’s unusual for all par-

ties before the Court to discuss what the

sentence is going to be. | don’t think that comes

as a surprise to anyone. it certainly doesn’t come

as a surprise to me.

MR. DEWRELL: It’s my understanding --

JUDGE: Gentiemen, | might clear this mat-

ter up. In order for the State to agree to any

sentence or the defense either one to be impos-

ed by the Court, the Court would necessarily

have to be part of that agreement. This Court has

not agreed to impose any particular sentence.

Upon being notified that the defendant was go-

ing to plead, it was my understanding that the

State was going to secure the guilty or a nolle

contendere plea on those two charges. The

Court had indicated that unless there were cir-

cumstances to alter my position penalty under

these charges, but unless | am mistaken in my

interpretation of the conference of counsel the

Court has not agreed to any particular sentence.

7-

is that your understanding, Mr. Brace?

MR. BRACE: Not exactly. | am not at all

Teluctant to take on Mr. Dewrell. | am not quite

as anxious to encounter the wrath of the Court.

We have had some fairly candid discussions

about this case and that is certainly the impres-

sion that | have. It’s my impression that he is go-

ing to get 35 years. | realize that it is not the

prerogative of the State Attorney’s office to im-

pose sentence. It is certainly within the discre-

tion of the Court and it is not binding on the

Court, but that is the impression myself was left

with. One further factor that is a condition of this

is that the defendant is to remain in custody

without bond upon the acceptance of the plea

by the Court pending any sentence.

A

th

JUDGE: Mr. Dewrell?

MR. DEWRELL: The bail provision as men-

tioned by Mr. Brace was included and is a part

of the negotiated plea in this case, Your Honor.

it is my understanding that the Court is to order

presentence investigation that the Court will per-

mit, at the defendant’s expense, the defendant

to be examined by certain physicians for the pur-

pose of reporting to this Court and giving this

Court the benefit of their expert opinion within

the area of their expertise on any matters that

might have bearing upon what would be a pro-

per sentence in this case. That is, particularly

when | have objected to Mr. Brace’s representa-

tion that there’s an agreement for Mr. Shahid to

receive 35 years. There is an agreement that that

is the maximum he could receive, that matter be-

ing in the discretion of the Court and not being

totally unfamiliar with this Court's disposition as

to sentence. it is our desire to have a

presentence investigation and the have Mr.

Shahid examined by some physicians in the

local community and for them to submit in

writing their findings to this Court for the Court's

consideration in determining an appropriate

sentence.

Id., Appendix, pages 7-9.

Despite the prosecutor's admitted violation of

the plea bargain, the Court did not, affirmatively, of-

fer the Petitioner an opportunity to withdraw his plea

nor did the Court inform the Petitioner that the pro-

secutor's violation of the plea bargain make it im-

possible to conform to the terms of that plea bargain.

-8-

The prosecutor admitted his promise to stand mute

at sentencing in his statement contained in the Peti-

tioner’s presentence investigation report (A. 24). Mr.

Brace continued to violate his agreement to stand

mute at sertencing when he had the recommenda-

tion of Sam Brewer of the Okaloosa County Sheriff's

Department included in the presentence investigation

report that was to be used by the Court in passing

sentence. Mr. Brewer's statement recommended the

same maximum sentence recommended by Mr. Brace

to the Court (A. 24). The Court went on to sentence

the Petitioner to 30 years for “Trafficking \n Cocaine”

with a 5 year consecutive sentence for “Possession

Of Hashish”; the maximum sentence on each charge

recommended by the prosecutor (A. 44).

The Petitioner filed Notice Of Appeal to Florida’s

First District Court of Appeals and the State respond-

ed with a Motion To Dismiss the Appeal (A. 53-54) on

the grounds that the Petitioner had not given the Triai

Court an opportunity to withdraw the judgment and

sentence. The First District Court of Appeals ordered

the Petitioner to show cause why his Appeal should

not be dismissed (A. 55) and the Petitioner replied

with a Request To Voluntarily Dismiss The Appeal

pending a resolution of the violated plea bargain by

the Trial Court (A. 58-60). The First District Court of

Appeals entered the order requested by the Petitioner

dismissing the Appeal without prejudice (A. 61).

Following the Court order, the Petitioner filed his

Motion To Vacate Sentence And To Withdraw Plea

with the Trial Court (A. 62-63). On October 26, 1981,

Judge Barron issued his order denying the Motion To

Vacate Sentence And To Withdraw Plea (A. 64). In his

-9-

order, Judge Barron made the specific finding in fact

that the State did not violate any plea agreement bet-

ween the State and the Defense (A. 62).

After the Trial Court denied the Petitioner's Mo-

tion To Vacate Sentence And To Withdraw Plea, the

Petitioner returned to the First District Court ot Ap-

peals where his case was docketed under Case No.

Al-205. The Pe<itioner filed his Brief Of Appellant rais-

ing the following issue:

WHETHER THE ASSISTANT STATE AT-

TORNEY’S VIOLATION OF THE PLEA

AGREEMENT TO REMAIN MUTE AS TO AP-

PELLANT’S SENTENCING RENDERS AP-

PELLANT’S NO CONTEST PLEA

INVOLUNTARY.

Id., Appendix, pages 65-73.

The State failed to file a Reply Brief and the case

was decided by the Court on the merits of the Peti-

tioner’s Brief and the Record On Appeai. On April 20,

1982, the First District Court of Appeals of Florida,

Per Curiam Affirmed, the judgment and sentence of

the Trial Court (A. 74), and the Petitioner timely filed

a Motion For Rehearing (A. 75-78). On May 27. 1982,

the Petitioner's Motion For Rehearing was denied by

Florida’s First District Court of Appeals without opi-

nion (A. 79).

The First District Court of Appeal’s citation, Per

Curiam Affirmed, bars the Petitioner from review by

the Florida Supreme Court pursuant to the 1980

Florida Constitutional Amendment. See, Jenkins v.

State,385 So.2d 1356, 1359 (Fla. 1980).

-10-

REASONS FOR GRANTING THE WRIT

THE FIRST DISTRICT COURT OF AP-

PEALS’ DECISION IN SHAHID V. STATE,

IS IN EXPRESS CONFLICT WITH THIS

COURT'S DECISION IN SANTOBELLO V.

NEW YORK, 404 U.S. 257.

The State of Florida in the person of Mr. Keith

Brace, coerced the Petitioner into entering a nolo con-

tendere plea in the above styled cause. The coercion

offer was, that the State of Florida would stand mute

as to the sentence imposed and would nolle prosequi

all lesser offenses arising out of the charged transac-

tion. The transactional immunity offered prevented the

Petitioner from receiving any concurrent sentences for

offenses arising out of the charged transaction. it did

not limit or reduce *he length of the sentences receiv-

ed, and offered no real advantage other than to reduce

the Petitioner's legal expenses. See, Florida’s Single

Transaction Ruie contained in Brown v. State, 206

So. 2d 377 (Fla. 1968). On the other hand, the pro-

secutor’s promise to “stand mute” in regards to the

sentence imposed, offered the Petitioner the very real

advantage of receiving less than the maximum

sentence. The prosecutor violated his promise to stand

mute at the Petitioner's plea hearing and admitted this

violation when challenged by the Petitioner's legal

counsel. The prosecutor continued to violate his plea

-11-

agreement when he included the arresting officer's

recommendation of maximum sentence in the Peti-

tioner’s presentence investigation report used by the

Judge in passing sentence. Despite this dual violation

of the plea agreement, the Judge failed to affirm-

atively offer the the Petitioner an opportunity to

withdraw his plea, instead the Judge stated that he was

uninfluenced by the prosecutor's recommendation and

sentenced the Petitioner to the maximum sentences

recommended by the prosecutor.

The facts of the case sub judice and the facts

presented in Santobello v. New York, 404 U.S. 257, 92

S. Ct. 495, 30 L_Ed.2d 427 (1971) are aii but identical.

in both, Santobello and Shahid the prosecutors agreed

to “stand mute” in regards to sentence as part of plea

agreement. In both Santobello and Shahid the pro-

secutors agreed to nolle prosequi additional charges

as part of the plea agreement. in Santobeiio the pro-

secutor nolle prosequi the major charges, leaving

Santobello with a misdemeanor charge. In Shahid

the prosecutor nolle prosequi the lesser offenses leav-

ing Shahid with the highest offenses charged. In both,

Santohello and Shahid the prosecutors violated the

plea agreement to “stand mute” as to the sentence im-

posed. In Santobello this violation of the plea agiee-

ment was occasioned by a change in the prosecutors

handling the case. In Shahid the prosecution had no

such excuse. In both Santobello and Shahid, the Trial

Judges disavowed any reliance on the prosecutors

violation of the plea agreement in passing sentence.

in both, Santobello and Shahid, the Trial Court failed

to affirmatively offer the defendants an opportunity to

withdraw their pleas. in both, Santobelio and Shahid,

the Appellate Courts upheid the Trial Court’s disavowais.

“12-

The facts of the Petitioner's case are so close to

the facts presented in Santobello, that there can be no

doubt that the First District Court of Appeals, with its,

Per Curiam Affirmed, opinion, placed itself in conflict

with this Court. Article Ili, Sec. 1. of the United States

Constitution vests the judicial authority of the United

States in this Court. Article Ill, Sec. 2 of the United

States Constitution extends this Court's judicial power

to all cases in law and equity arising under this Con-

stitution. Williams v. State of Georgia, 75 S.Ct. 814, 349

U.S. 375, 99 L.Ed. 1161 (1955). Florida’s First District

Court of Appeals has placed itself in express conflict

with this Court on a point of law determined by this

Court in Santobello v. New York, supra. Egan v. City

of Aurora, 81 S.Ct. 684, 365 U.S. 514, 5 L.Ed.2d 741 (1961).

The conflict must be resolved in the favor of this Court;

this warrants the grant of certiorari. Wilkinson v. United

States, 365 U.S. 399 (1961), reh. den., 365 U.S. 390;

v h

& Water Division, 358 U.S. 103 (1958).

The facts of the case sub judice also parallel the

Third Circuit Court of Appeals’ decision in Patrick v.

Camden County Prosecutor, 630 F.2d 206 (3rd Cir. 1980),

in which the Third Circuit Court of Appeals echoed this

Court’s decision in Santobello v. New York, supra,

holding:

Although it is not made clear in Santobelio

v. New York, 404 U.S. 257, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971), that the violation of a

plea bargain by the state involves a defen-

dant’s due process right, we are satisfied

that such a right is implicated.

-13-

The Petitioner agrees with the above statement by

the Third Circuit Court of Appeals. The Petitioner's right

to “due process” and “equal protection” of law

guaranteed him by the Fifth and Fourteenth Amend-

ment to the Constitution of the United States has been

abridged by the actions of the Florida Courts.

FLA.R.CRIM.P. 3.172(i), WHICH RE-

QUIRES A DEFENDANT TO SHOW THAT

HE WAS PREJUDICED BY THE VIOLA-

TION OF A PLEA BARGAIN, CIR-

CUMVENTS THE CONSTITUTIONAL

SAFEGUARDS ERECTED BY THIS

COURT IN ITS DECISION IN SAN-

TOBELLO V. NEW YORK, 404 U.S. 257.

Rule 3.171 of the Florida Rules of Criminal Pro-

cedure. titled: plea Discussions And Agreements, must

be read in pari materia with Rule 3.172 of the Florida

Rules of Criminal Procedure, titled: Acceptance of Guil-

ty or Nolo Contendere Pleas. Since revision of the

Florida Rules of Criminal Procedure removed the penal-

ty section of Rule 3.171(d), titled: Responsibilities of the

Trial Judge and placed it under Rule 3.172(i), which

reads:

Failure to follow any of the procedures

in this rule shall not rencer a plea void ab-

sent a showing of prejudice.

Under this Rule and Florida case law, a defendant

-14-

who suffers a violated plea bargain, must make an

affirmative showing of prejudice in order to withdraw

his piea. The Petitioner contends that this requirement

of Florida law circumvents the safeguards erected by

this Court in its decision in Santobello v. New York,

supra.

in Shahid v. State, the Trial Judge mado the

specific statement that he was not relying upon the

recommendations of the prosecutor that the maximum

sentence be imposed. Since the Trial Judge disavow-

ed reliance upon the prosecutor's recommendation,

Shahid could not make the required showing of affir-

mative prejudice arid was not entitled to relief under

Florida law.

In Machibroda v. United States, 82 S.Ct. 510, 368

U.S. 487 (1962), this Court held that a guilty plea induc-

ed by unkept promises vitiated the voluntariness of the

plea and rendered it subject to collateral attack. Since

the Fiorida Rules of Criminal Procedure encourage a

defendant to plea bargain, there can be no doubt that

the State is involved in coercing a defendant to waive

his basic rights. In Santobello v. New York, supra,

Mr. Justice Douglas elaborated on the rights sur-

rendered by a defendant when he enters a plea bargain:

However important plea bargaining

may be in the administration of criminal

justice, our opinions have established that

ey ee ee

casion inasmuch as it constitutes a

waiver of fundamental rights to a jury trial,

Guocan y._Louisianns. S31 U.S. 145, 88

S.Ct. 1444, 20 L. 491, to confront

one’s accusers, Pointer v. Texas, 380 U.S.

-15-

400, 85 S.Ct. 1065, 13 L.Ed.2d 1019, to re-

main silent, Malloy v. Hogan, 378 U.S. 1,

84 S.ct. 1489, 12, L.Ed.Zd 653, and to be

Kercheval vy.

274 U.S. 220, 47 S.Ct. 582,

71 L.Ed. 1009, this Court has recognized

that “unfairly obtained” guilty pieas in the

federal courts ought to be vacated. Ir: the

course of holding that withdrawn guilty

pleas were not admissible in subsequent

federal prosecutions, the Court opined...

Because of the importance of the piea bargaining

system to the orderly administratioin of the criminal

justice system, and because of the fundamental nature

of the rights waived, this Court erected certain

safeguards to insure the voluntariness of the waiver.

One of those safeguards is that when a plea rests in

any significant degree on a promise or agreement of

a prosecutor, that promise or agreement must be fulfill-

ed. Any breech of a promise or agreement that forms

a basis of a plea bargain must result in the defendant

being given an affirmative opportuntiy to withdraw his

plea and go to trial on the merits. Failure to allow this

opportunity to a defendant is to deny him fundamen-

ta! fairness. Florida Rules of Criminal Procedure 3.172(i)

deny a defendant fundamental fairness. This Rule re-

quires the defendant to make two (2) showings: first,

that the plea bargain has been violated, and, second,

that he has been prejudiced thereby. The second show-

ing is almost impossible to make.

Florida Rules of Criminal Procedure 3.172(i) is Un-

constitutional and repugnant. It expressly conflicts with

-16-

Ul

this Court's decision ir: Santobello v. New York, supra,

and denies the Petitioner due process of law

guaranteed him by the Fifth and Fourteenth Amend-

ments to the Constitution of the United States. it has

abridged his right to a fair trial guaranteed him by the

Sixth Amendment to the Constitution of the United

States and it has denied him equal protection of law

guaranteed him by the Fourteenth Amendment to the

Constitution of the United States.

This Court has traditionally been concerned with

constitutional questions relating to the validity of State

criminal procedures. See, Jackson v. Denno, 378 U.S

368 (1964). Important Constitutional questions which

relate to the effective administration of the criminal

justice system have long been held sufficient to invoke

the certiorari jurisdiction of this Court; in particular

questions involving plea bargaining provide a sound

basis for the issuance of the writ. See, Santobelilo v.

New York, supra.

This case presents an important issue of Constitu-

tiorial dimensions concerning the effective administara-

tion of the criminal justice system. The improper man-

ner in which the State of Florida has applied the dic-

tates of Santobello v. New York, supra, and the

lack of uniformity with which this decision has been

applied warrants the issuance of a writ of certiorari.

-17-

CONCLUSION

For the foregoing reasons, the Petitioner requests

that this Court issue a Writ Of Certiorari to review the

decision of Florida's First District Court of Appeals in

Shahid v. State, and the Constitutionality of Florida

Rules of Criminal Rule 3.172(i).

M. sere JR. o

SYPREFT, MESHAD, RESNICK & LIEB, PA

1900 Ringling Boulevard A

Post Office Box 1238

Sarasota, Florida 33578

Telephone (813) 365-7171

Counselor For Petitioner

CERTIFICATE OF SERVICE

| hereby certify that | have served irue and correct

copies of the foregoing Petition For Writ Of Certiorari

upon the Honorable Jim Smith, Attorney General,

Florida Department of Legal Affairs, State Capitol,

Tallahassee, Florida 32304, by placing same in a seal-

ed postage prepaid and depositing it in the

United States mail ‘4 day of July, 1982.

M. JOSEPH LIEB, JR.

SYPRETT, MESHAD, RESNICK & LIEB, P.A.

1900 Ringling Boulevard

Post Office 1238

Sarasota, Florida 33578

Telephone (813) 365-7171

Counsel For Petitioner

-19-

-

oy Lhe 2

ios

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

ERNEST W. SHAHID, JR., ) NOT FINAL UNTIL TIME

EXPIRES TO FILE

Appellant, ) REHEARING PETITION

AND DISPOSITION

vs. ) THEREOF IF FILED.

STATE OF FLORIDA, ) CASE NO. Al-205

)

Appeliee. ,

Opinion filed April 20, 1982.

An Appeal from the Circuit Court for Okaloosa County.

Larry Byrd, Sarasota, and M. Joseph Lieb, Jr., Sarasota,

for Appellant.

No Response for Appellee.

PER CURIAM.

AFFIRMED.

ERVIN, SHIVERS, and WENTWORTH, JJ., CONCUR.

DISTRICT COURT OF APPEAL, FIRST DISTRICT

Tallahassee, Florida 32201

Telephone No. (904) 488-6152

Date: May 27, 1982

CASE NO. Al-205 _

ERNEST W. SHAHID, JR. VS. STATE OF FLORIDA

Appeliant/Petitioner Appellee/Respondent

MEMORANDUM TO COUNSEL OR

PARTIES LISTED BELOW

The following action was taken in the

above-styled case on the above date:

Request for oral argument DENIED.

Motion for rehearing DENIED.

By Order of the Court

RAYMOND E. RHODES, CLERK

| HEREBY CERTIFY that a true and correct copy of the

above was mailed this date to the following:

Larry Byrd, Esquire, Sarasota, Florida

M. Joseph Lieb, Jr., Esquire, Sarasota, Florida

Jim Smith, Attorney General, Tallahassee, Florida

Deputy Clerk

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