RAMON PUENTES, Defendant/Petitioner, vs. STATE OF FLORIDA SUPREME COURT Third DCA Case Nos.: 3D09-1822 3D09-1832 3D09-1833 (Consolidated) 11 th Cir. Case Nos: F04-22159E F04-22169G F05-11782 STATE OF FLORIDA, Plaintiff/Respondent / APPEAL FROM THE STATE OF FLORIDA THIRD DISTRICT COURT OF APPEAL BRIEF ON JURISDICTION DEFENDANT/PETITIONER RAMON PUENTES The Law Office of Gennaro Cariglio Jr. 10800 Biscayne Blvd. Suite 900 Miami, Florida 33161 (305) 899-0438 By: Gennaro Cariglio Jr. Florida Bar Number 51985 Attorney for the Appellant
TABLE OF CONTENTS Table of Contents Table of Citations and other Authorities ii iii Statement of the Case 1 Summary of the Argument 5 Argument 5 I. The Decision of the Third District Court of Appeal Directly Conflicts with a Decision of Another District Court of Appeal and with the Florida Supreme Court 5 A. Rule 3.170 6 B. Contract Law 8 Conclusion 10 Certificate of Compliance 10 Certificate of Service 10 ii
TABLE OF CITATIONS Case law: Page Arbogast v. Bryan, 393 So. 2d 606 (Fla. 4 th DCA 1981) 8 Metellus v. State, 817 So. 2d 1009 (Fla. 5 th DCA 2002) 7 Metellus v. State, 900 So.2d 491 (Fla. 2005) 6,7,8 McCoy v. State, 599 So. 2d 645 (Fla. 1992) 6 Prudential Property & Casualty Ins. Co. v. Swindal, 622 So. 2d 467 (Fla. 1993) 9 Florida Statutes: 812.014 1 817.034 1 Florida Rules of Criminal Procedure: F.R.Cr.P. 3.170 6,7,8 iii
STATEMENT OF THE CASE A. Procedural History: On January 4, 2008, pursuant to a written plea agreement Ramon Puentes pled guilty to Count 11 of the Third Amended Information charging him with one count of an Organized Scheme to Defraud in violation of Florida Statute 817.034(4)(a)(3). Case#F04-22159(E). On January 4, 2008, pursuant to a written plea agreement Ramon Puentes pled guilty to Count 12 of the Amended Information charging him with one count of an Organized Scheme to Defraud in violation of Florida Statute 817.034(4)(a)(3). Case#F04-22169(G). On January 4, 2008, pursuant to a written plea agreement Ramon Puentes pled guilty to Count 1 of the Information charging him with one count of Burglary of an Unoccupied Structure in violation of Florida Statute 812.014(1)(2)(a). Case#F05-11782. Instead of receiving the agreed upon sentence in the plea agreements, 18 months or less Florida State Prison concurrent for all three cases, Puentes was sentenced to fifteen years Florida State Prison on case# F04-22169G, and five years Florida State Prison on cases #F04-22159E and #F05-11782 consecutive to each other but concurrent to case #F04-22169G. B. Statement of the Facts: 1. Plea Agreements: 1
Paragraph 10 of the plea agreements is identical in all three cases. They state the following: The Defendant shall refrain from the commission of any crime during the pendency of this case and the Defendant s cooperation. Any violation of this paragraph on the part of the Defendant shall constitute a breech (sic) of this plea agreement, and shall render this agreement voidable at the discretion of the State. In the event that the State elects to void this agreement as a result of the Defendant committing a crime, the parties agree that the sanctions as set out in paragraph eight (8) above shall be imposed. (Emphasis added). 2. Ramon Puentes Cooperation: Subsequent to the State learning that Puentes had committed a new offense, the State decided to continue to use Puentes as a witness. Puentes provided a sworn statement to A.S.A. Richard Scruggs on October 2, 2008. Nowhere in the sworn statement does the prosecutor advise Puentes that he is seeking to void his plea agreement and enhance his sentence based on the commission of a new crime, instead making statements that left an impression with Puentes that the plea agreement was still valid. Puentes then testified at two depositions as a State witness in this matter on October 22 and 27, 2008. Scruggs made the following disclosure to the codefendants counsels: I will tell you, prior to today, counsel for Mr. Puentes had 2
been notified by me, by the State, that it is in violation of the plea agreement. R-458. This oral statement by the prosecutor was the only Brady, Giglio or Napue disclosure made to the co-defendants counsel about Puentes violation of the plea agreement. All of the parties, including Puentes, were left with the impression that although Puentes was in violation of the plea agreement, the State had not sought to void the agreements pursuant to paragraph 10 of the plea agreements. After Puentes cooperation was complete at and several months after it learned of his noncompliance, the State informed his attorney that it would not keep an open mind and was seeking to increase Puentes sentence to fifteen years Florida State Prison. Several sentencing hearings were subsequently held. 3. Testimony of Oscar Rodriguez (Defense Counsel): On August 4, 2008, Rodriguez had a conversation with Scruggs where Scruggs informed him that Puentes was in violation of the plea agreements but did not recall Scruggs telling him that he would advise Judge Scola at sentencing that Puentes breached his plea agreements. Rodriguez and Scruggs discussed the fact that the State was going to continue to use Puentes in their state case. While Rodriguez and Scruggs discussed the possibility of a higher sentence, there is no evidence that this fact was ever disclosed to Puentes at any point in time until January of 2009. At some point after Puentes cooperation was complete, Rodriguez 3
incorrectly told Puentes that the Court may raise the sentence. This was incorrect as the Court was not allowed to increase the sentence under the agreement. 4. Direct Testimony of ASA Richard Scruggs: On August 4, 2008, Scruggs made a phone call to Rodriguez wherein Rodriguez told him that the U.S. Attorney s investigation with Puentes involved ongoing criminal activity. At the conclusion of the phone call, Rodriguez then asked him to keep and open mind about the eighteen month sentence and Scruggs replied that it would be very difficult, but he would allow Puentes to continue to cooperate and keep the door open about the eighteen month sentence. On August 8, 2008, Scruggs had a meeting with the AUSA Shumofsky where Scruggs became concerned that if he violated Puentes, Puentes may refuse to cooperate with the federal government. At no time during the cooperation did Scruggs tell Puentes he was seeking an increased sentence. On January 7 th, 2009, Scruggs recalled Rodriguez asking him if he was going to agree to an eighteen month sentence and Scruggs said no. 5. Cross-Examination of ASA Richard Scruggs: Scruggs admitted to drafting the entire plea agreement. Scruggs admitted to knowing the difference between void and voidable and agreed that voidable means the State has to take some affirmative action one way or the other but admitted the contract does not specify what that is. Scruggs did not send any let- 4
ters to defense counsel or file pleadings stating that he intended to seek an increased sentence and void the plea agreement. Although Scruggs agreed that the State intending to void this plea agreement and increase Puentes sentence would be something he has to disclose under Brady, Giglio, and Napue he never disclosed this fact to the co-defendants that proceeded to trial. SUMMARY OF THE ARGUMENT The Third District Court of Appeal s decision expressly conflicts with decisions of the Florida Supreme Court by (1) holding that F.R.Cr.P. 3.170(g) does not apply to plea agreements where the defendant has not been sentenced and (2) alternatively holding that if the Rule did apply it was waived. Additionally, the Third District Court of Appeal s decision expressly conflicts with a decision by the Fourth District Court of Appeal by finding that Puentes waived any rights he had under the plea agreement to a conditional sentence of 18 months or less Florida State Prison. Finally, the Court construed an ambiguous term of the plea agreement in favor of the drafter expressly contradicting Florida Supreme Court case law that ambiguous term of an agreement must be construed against the drafter. ARGUMENT I. The Decision of the Third District Court of Appeal Expressly Conflicts with a Decision of Another District Court of Appeal and with the Florida Supreme Court 5
A. Rule 3.170: The decision of the Third District Court of Appeal directly conflicts with this Court s ruling in Metellus v. State, 900 So. 2d 491 (Fla. 2005) and McCoy v. State, 599 So. 2d 645 (Fla. 1992) by (1) holding that F.R.Cr.P. 3.170(g) does not apply to plea agreements where the defendant has not been sentenced and (2) alternatively holding that if the Rule did apply it was waived. In McCoy, this Court adopted a procedure to be followed which ultimately led to the establishment of a definitive procedural Rule, F.R.Cr.P. 3.170. Id. The reasoning behind McCoy and the establish of Rule 3.170 was to provide notice to cooperating defendants that the State was seeking to terminate their obligations under the plea agreement within a stated period of time. This was meant to prevent the State from doing exactly what they have done to Puentes in this case, allow him to continue to cooperate after his breach under the belief that the State was going to honor its end of the plea agreement. Instead, the State waited until after Puentes cooperation was complete to inform him that it was not going to honor its obligation. The State s failure to move to vacate the plea and conditional sentence within sixty days of the time of the defendant s noncompliance with the specific terms of the plea agreement was required by paragraph 10 of the plea agreements, this Court s ruling in McCoy and Metellus and the established procedural rule, F.R.Cr.P. 3.170(g)(2). Here, there was a plea and an agreed upon sentence of 6
18 months or less but no formal sentence had been imposed. Prior to the Metellus case reaching this Court, the Fifth District Court of Appeal held that Rule 3.170 applies to pleas or sentences, not pleas and sentences. If the motion is made within the sixty-day time limit, the trial court may vacate the plea or sentence upon the defendant s breach and proceed to re-sentence the defendant. Metellus v. State, 817 So. 2d 1009, 1016 (Fla. 5 th DCA 2002). Additionally, F.R.Cr.P. 3.170(g)(2) specifically mentions No plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance with the express plea agreement. Therefore, the Court s finding that the Rule did not apply was erroneous. The Third District Court of Appeal s opinion that if time limits of the Rule apply they were waived by Puentes, expressly conflicts with decisions of this Court and the specific language of F.R.Cr.P. 3.170(g)(2)(A). In Metellus, in deciding whether a plea and sentence could be vacated by a motion 74 days after the noncompliance, this Court specifically held that the time frame of F.R.Cr.P. 3.170(g) could be altered if stated on the record. (Emphasis added.) Metellus v. State, 900 So. 2d 491, 493. (Fla. 2005). This Court then found that the sixty day time limit for filing a motion to vacate was not jurisdictional so that any objection based on the timeliness of the motion could be waived and Metellus failure to object constituted a waiver of that claim. Id. At 495. Here, it is undisputed that the State did not comply with the time period for filing a motion to vacate the plea-in fact, the 7
State never filed one. Furthermore, it is undisputed that there was never any agreement on the record to extend the sixty day time period. Finally, when the State announced off the record that it sought a sentence of fifteen years for Puentes nearly six months after it learned of the breach, Puentes objected immediately and the Court conducted sentencing hearings. Finally, there is nothing on the record or off the record that states that Puentes had agreed to such a waiver. The State cannot claim the Puentes timely failed to object to a motion to vacate. Therefore, the Third District Court of Appeal s opinion finding a waiver is in express conflict with McCoy, Metellus, and F.R.Cr.P. 3.170. B. Contract Law: The waiver analysis of the Third District Court of Appeal regarding the contractual issues expressly conflicts with the Fourth District Court of Appeal s holding in Arbogast v. Bryan, 393 So. 2d 606 (Fla. 4 th DCA 1981). By allowing Puentes to continue to cooperate, the State waived any rights it had to void the agreement by accepting performance differing from the performance required by the contact. See Arbogast v. Bryan, 393 So. 2d 606 (Fla. 4 th DCA 1981). The Third District Court of Appeal found the opposite, that although the State allowed Puentes to continue to cooperate they were still entitled to give him a higher sentence. This is despite the State s failure to give Puentes notice by putting their intention to seek a higher sentence on the record, make a Brady, Giglio, or Napue 8
disclosure to the co-defendants, or to advise Puentes personally. Once again, the only disclosure in the record is the testimony of Rodriguez stating that he told Puentes after the cooperation was complete the Court could still give Puentes a higher sentence. This did not constitute notice to Puentes that the State was seeking a higher sentence and the advice was erroneuous as the Court did not have discretion under the plea agreement to increase the sentence. Since there is no testimony that Rodriguez ever told Puentes that the State was seeking a higher sentence, there is no way Puentes could have waived any rights. Therefore, the State waived its right to seek a higher sentence. The Third District Court of Appeal also found that Rule 3.170 did not apply because the State was seeking to enforce the terms of the plea agreement, not vacate them. This analysis directly conflicts with case law stating that ambiguous terms of an agreement must be construed against the drafter. Prudential Property & Casualty Ins. Co. v. Swindal, 622 So. 2d 467 (Fla. 1993). Puentes position and the express language of paragraph 10 of the plea agreements is that the State had to void the entire agreement altogether, a position the co-defendants attorneys thought was the case while they were deposing Puentes, a fact that was not in contention. It is undisputed that the prosecutor drafted paragraph 10 of the plea agreements. There is no dispute that the language of the paragraph 10, does not include the word enforce. Yet, the Third District Court of Appeal resolved the 9
ambiguity in favor of the drafter by holding that the State could enforce, not void, the agreement and give Puentes a higher sentence which is in direct conflict with existing Florida Supreme Court case law. CONCLUSION The Court should grant Puentes motion to invoke the discretionary jurisdiction of the Florida Supreme Court and order briefing on the merits and oral argument. CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210. By: Gennaro Cariglio Jr. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was mailed to the Attorney General s Office, 444 Brickell Ave., Rivergate Plaza, Suite 650 Miami, Florida 33131 on this 25th day of April, 2011. The Law Office of Gennaro Cariglio Jr. 10800 Biscayne Blvd. Suite 900 Miami, Florida 33161 (305) 899-0438 By: Gennaro Cariglio Jr. Florida Bar Number 51985 10