# Petition — Shahid v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0529%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1015 ## Text 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 . “ a ie nied --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0529%3A1. Public record. Not legal advice.