Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KENNETH A. BAILEY, ) ) Appellant, ) ) v. ) Case No. 2D20-171 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed December 18, 2020. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Mary M. Handsel, Judge. CASANUEVA, Judge. Kenneth A. Bailey appeals an order dismissing his motion for postconviction relief, which he filed under Florida Rule of Criminal Procedure 3.850. Because the motion asserts facially sufficient claims for relief that are not conclusively refuted by the record, we reverse the postconviction court's order and remand for further proceedings. I. FACTS Bailey pleaded guilty and was convicted in Pasco County of possession of a controlled substance, possession of paraphernalia, and providing false identification to a law enforcement officer. He was sentenced to thirteen months' imprisonment for possession of a controlled substance and time served on the remaining offenses. The written sentence included an instruction that the composite term of his sentences run concurrently with "[a]ny Pinellas County sentence." About a month later, Bailey pleaded guilty and was convicted in Pinellas County of failure to appear in case number 17-05997-CF and two counts of felony battery in case number 16-04786-CF.1 The trial court sentenced him to thirty months' imprisonment for each offense, with all of his sentences running concurrently. The Pinellas County sentences made no mention of Bailey's Pasco County sentence. Bailey did not appeal any of his judgments and sentences. In the underlying Pasco County case, Bailey filed a timely motion for postconviction relief. In ground one, he sought to enforce his plea agreement, which was accepted by the trial court and allegedly provided that his thirteen-month Pasco County sentence would run concurrently with his anticipated Pinellas County sentences in the above cases. Although the written Pasco County judgment and sentence provides that his sentence should run concurrently with "[a]ny Pinellas County [s]entence," he was informed by prison officials with the Department of Corrections (DOC) that his Pasco and Pinellas County sentences were running consecutively because there were no Pinellas County sentences in existence when the Pasco County sentence was imposed. Bailey contended that he is entitled to specific performance of his plea agreement and requested that his written sentence be corrected to explicitly 1Bailey was arrested on warrants for the Pinellas County offenses when he was arrested for the underlying Pasco County offenses. The Pinellas County cases were pending when he entered his plea in Pasco County. -2- state his sentence should run concurrently with his Pinellas County sentences in case numbers 16-04786-CF and 17-05997-CF. In ground two, Bailey argued that his written sentence conflicted with the trial court's oral pronouncement. He alleged that the trial court pronounced that his sentence should run concurrently with his future Pinellas County sentences. However, the written sentence only stated that his sentence should run concurrently with "[a]ny Pinellas County sentence." Bailey asserted that his written sentence should be corrected to conform to the trial court's oral pronouncement to explicitly state that it should run concurrently with his Pinellas County sentences in case numbers 16-04786- CF and 17-05997-CF. The postconviction court dismissed Bailey's motion for failure to state a claim upon which relief could be granted. The court restated ground one as a claim that the DOC had failed to properly implement his sentence and a claim in which he requested specific performance of his plea agreement. Citing to Johnson v. State, 281 So. 3d 539, 542 (Fla. 1st DCA 2019), Hutchinson v. State, 845 So. 2d 1019 (Fla. 3d DCA 2003), and Taylor v. State, 710 So. 2d 636 (Fla. 3d DCA 1998), the court reasoned that a defendant may be granted postconviction relief in the form of specific performance of a plea agreement "where counsel failed to properly advise a defendant as to the potential consequences and when those concurrent sentences related to charges arising out of state and federal court." In addition, the court observed that the defendants' acceptance of the plea bargains in those cases was conditioned upon the sentences being concurrent. The postconviction court found that Bailey did not affirmatively allege that accepting his plea in Pasco County was contingent upon his sentence running concurrently with any Pinellas County cases. In addition, the court -3- found that he did not allege counsel failed to properly inform him of any consequences of his plea and that he was not serving a federal sentence. Moreover, the sentencing order directed that Bailey's Pasco County sentence run concurrently with any Pinellas County sentence. Thus, the court reasoned, ground one failed to state a claim upon which relief could be granted.2 With respect to ground two, the postconviction court reasoned that while correction of a sentence that fails to comport with a trial court's oral pronouncement is available in a rule 3.850 motion, Bailey failed to allege any difference between the sentence orally pronounced and his written sentence. The court found that the language "any Pinellas County sentence" in the sentencing order was not inconsistent with the alleged pronouncement that his sentence run concurrently with his two Pinellas County cases and that to the extent that he had not received the sentence that was pronounced, his remedy lay with the DOC or the Pinellas County court. The postconviction court dismissed both grounds as failing to state a claim upon which relief could be granted. The court also denied Bailey's motion for rehearing. II. DISCUSSION The essence of Bailey's claim is that the plea agreement he entered into with the State was not enforced. "Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons." Santobello v. New York, 404 U.S. 257, 261 (1971). In this phase of the criminal justice system "a constant factor is that when a plea rests in any significant degree on a 2The postconviction court stated that Bailey's remedy for the DOC's interpretation of his sentence was through administrative recourse with the DOC. -4- 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." Id. at 262. The concept that a promise by the prosecutorial agency must be fulfilled found further development in Puckett v. United States, 556 U.S. 129 (2009). There, writing for the majority, Justice Scalia explained that a plea bargain was essentially a contract. Id. at 137. "When the consideration for a contract fails―that is, when one of the exchanged promises is not kept . . . we say that the contract was broken." Id. Upon a breach the injured party "will generally be entitled to some remedy." Id. When a defendant agrees to a plea bargain, the Government takes on certain obligations. If those obligations are not met, the defendant is entitled to seek a remedy, which might in some cases be rescission of the agreement, allowing him to take back the consideration he has furnished, i.e., to withdraw his plea. But rescission is not the only possible remedy; in Santobello [v. New York, 404 U.S. 257 (1971),] we allowed for a resentencing at which the Government would fully comply with the agreement―in effect, specific performance of the contract. Id. And why must the government comply? Justice Scalia answered this question as follows: "It is precisely because the plea was knowing and voluntary (and hence valid) that the Government is obligated to uphold its side of the bargain." Id. at 137-38. Florida, too, recognizes that a defendant may be entitled to specific performance of promises made by the State to induce a plea. See, e.g., McCullough v. State, 974 So. 2d 1214, 1218 (Fla. 2d DCA 2008) (holding the appellant was entitled to the sentences that the trial court said would be imposed upon the fulfillment of the conditions of the plea agreement); see also Hutchinson, 845 So. 2d at 1019-20; Taylor, 710 So. 2d at 637. Having determined that there are remedies available to Bailey -5- should he prevail, we next visit whether his motion was legally sufficient to require that an evidentiary hearing be afforded to him. Sufficiency of the Motion We conclude that Bailey's motion states a facially sufficient claim for relief that is not conclusively refuted by the record attachments to the postconviction court's order. See Fla. R. Crim. P. 3.850(f)(5). Bailey alleged that he entered a negotiated plea, the terms of which required that he be sentenced to thirteen months' imprisonment concurrent with his sentences in the Pinellas County cases. Bailey attached to his motion a copy of his plea agreement which included a provision stating that "no one ha[d] promised [him] anything to entice [him] to enter this plea, however, there has been an understanding that [his] sentence will consist of: Departure: AG, 13 months DOC w/CTS 245 days—concurrent pinellass [sic] case, [illegible,] 1 yr DL rev." Bailey further alleged that the trial court was aware of the two pending Pinellas cases, that the cases had been discussed at the plea colloquy and sentencing hearings, and that in pronouncing his sentence the court made clear that Bailey's Pasco County sentence should run concurrently with his future Pinellas County sentences. The postconviction court did not attach record documents that conclusively refute Bailey's allegations concerning his plea bargain.3 Moreover, the postconviction court incorrectly stated that Bailey should pursue an administrative remedy with the DOC. When Bailey sought administrative relief with the DOC, he was correctly advised that because his Pinellas sentences did not exist when the Pasco County sentence was imposed, the written order that his 3The transcripts of Bailey's plea and sentencing hearings were not attached to the postconviction court's order and are not part of the summary record. -6- Pasco County sentence would run concurrently with "any" Pinellas County sentence could not be interpreted to refer to his subsequently-imposed Pinellas County sentences. See Newman v. State, 409 So. 2d 514, 514 (Fla. 5th DCA 1982) (holding that language in a sentencing order that the sentence "be served consecutively with any other sentence imposed by any other court," referred only to a sentence already imposed when the court entered its judgment and sentence); see also Snell v. State, 438 So. 2d 1038, 1040 (Fla. 2d DCA 1983) ("In the absence of court direction, sentences imposed for offenses not charged in the same information must be served consecutively while those imposed for offenses charged in the same information must be served concurrently." (citing § 921.16(1), Fla. Stat. (1981))). Thus, Bailey cannot secure the sentences for which he allegedly bargained through an administrative remedy with the DOC.4 4It remains to be determined whether the initial sentencing, pursuant to an accepted plea agreement and the sentencing discretion afforded to the respective sentencing judges permitted the implementation of the plea agreement with its specified terms. "A county court or circuit court of this state may direct that the sentence imposed by such court be served concurrently with a sentence imposed by a court of another state or of the United States or, for purposes of this section, concurrently with a sentence to be imposed in another jurisdiction." § 921.16(2), Fla. Stat. (2018) (emphasis added). Citing to an earlier version of section 921.16(2) that did not include the emphasized language, the court in Richardson v. State, 432 So. 2d 750, 751 (Fla. 2d DCA 1983), stated that "[t]he statutory language infers that there must be an existing sentence in that jurisdiction" in order for the trial court to run the sentence being imposed concurrently with a sentence in another jurisdiction. Thus, it is unclear whether the Pasco County Circuit Court had the authority to run Bailey's sentence concurrently with the sentences to be imposed in Pinellas County. To place this issue in context it is important to note that the pleas entered by Bailey were entered in the circuit courts of the same judicial circuit; Pasco County Circuit Court and Pinellas County Circuit Court are both contained in and are a part of the Sixth Judicial Circuit. And, importantly, each are served by the same Office of the State Attorney. Certainly, the State may adduce evidence at a hearing to fully establish its understanding of the plea agreement and whether the procedure utilized in resolving each of the cases was to ensure a timely resolution or for some other rationale. -7- The postconviction court failed to recognize Bailey's facially sufficient claims that he did not receive the sentence for which he bargained or that was orally pronounced because his written sentence could be interpreted in a manner that was inconsistent with the allegedly bargained-for sentence and the trial court's alleged oral pronouncement. See Pifer v. State, 8 So. 3d 1154, 1155 (Fla. 2d DCA 2009) (holding that the defendant's claim that his sentence exceeded the terms of his plea agreement was cognizable in a rule 3.850 motion); Sweet v. State, 987 So. 2d 747, 747 (Fla. 2d DCA 2008) (holding that a claim seeking to enforce a plea agreement must be filed under rule 3.850); see also Richardson v. State, 787 So. 2d 197, 198 (Fla. 2d DCA 2001) (observing that a claim that a written sentence fails to conform to the trial court's oral pronouncement is cognizable in a rule 3.850 motion). Accordingly, we must remand for further proceedings before the postconviction court. III. CONCLUSION Because we conclude that Bailey's motion for postconviction relief sets forth a facially sufficient claim that is not conclusively refuted by the present record, we reverse and remand for further proceedings. On remand, an evidentiary hearing may be necessary to establish a factual record surrounding the plea agreement and the procedural implementation of that agreement. The postconviction court will need to determine whether a legal plea bargain or contract came into being and the nature of Even if Bailey's allegedly agreed-upon sentence were legally impossible to implement, his arguments in grounds one and two state a facially sufficient claim that his plea was involuntary as set forth in Ramos v. State, 513 So. 2d 1097, 1098 (Fla. 2d DCA 1987). Under Ramos, if Bailey's allegations concerning his plea and sentence are not conclusively refuted by the record, he would be entitled to withdraw his plea or to have the court vacate his sentence and reimpose the same term to run concurrently with his now-existing sentences in Pinellas County. -8- the State's obligations. Should the plea bargain be established, the postconviction court must determine whether the State performed. If not, a remedy will be required. See Puckett, 556 U.S. at 137-38. Reversed and remanded. VILLANTI and LUCAS, JJ., Concur. -9-