FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Charlotte County; George C.
L. Dimmig, II, Public Defender, and Christopher E. Cosden,
Special Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Cornelius C.
Demps, Assistant Attorney General, Tampa, for Appellee.
Small appeals her convictions for sale of a controlled
substance and possession of a controlled substance with
intent to sell. Small initially pleaded no contest to the
sale charge in exchange for the State nolle prossing the
possession charge, but she later withdrew her plea and
proceeded to trial on both charges. She now contends that the
trial court committed fundamental error by allowing the State
to proceed to trial on the possession charge, which had been
nolle prossed, without filing a new information. Because the
trial court did not err in allowing the State to proceed on
the original information after Small had withdrawn her
negotiated plea, we affirm.
agreement is a contract between a defendant and the State, to
which ordinary rules of contract law apply. See Churchill
v. State, 219 So.3d 14, 18 (Fla. 2017) (citing
Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA
1998)). It is a well-established principle of contract law
that one party's material breach relieves the other party
of his obligations under the contract. See Green Tree
Servicing, LLC v. Milam, 177 So.3d 7, 14 (Fla. 2d DCA
2015). Accordingly, this court has recognized on numerous
occasions, that a defendant cannot enforce a plea agreement
against the State after withdrawing a plea. See,
e.g., Taylor v. State, 132 So.3d 882, 885 (Fla.
2d DCA 2014) (reasoning that defendant could withdraw his
plea, but could not enforce the plea agreement against the
State); Ciambrone v. State, 938 So.2d 550, 553 (Fla.
2d DCA 2006) (remanding to give defendant an opportunity to
withdraw her plea but noting that "if she does so,
neither she nor the State will be bound by the plea
agreement"); Cornett v. State, 922 So.2d 297,
299 (Fla. 2d DCA 2006) ("If [defendant] 'decides to
withdraw his plea and not be bound by the plea agreement, the
State, too, will not be bound by the plea agreement.'
" (quoting Goins v. State, 889 So.2d 918, 919
(Fla. 2d DCA 2004))); see also Guynn v. State, 861
So.2d 449, 450-51 (Fla. 1st DCA 2003) ("The negotiated
plea agreement placed obligations on both parties. . . .
Having accepted the benefits of the bargain . . . the
defendant cannot, any more than any other contracting party,
be relieved of the burden of his bargain."). Hence,
withdrawal from a plea agreement is a breach that excuses the
State from its obligations under the agreement.
greater significance in this context is the fact that
"[w]hen a plea of guilty or nolo contendere is withdrawn
and accepted by the court, it is as if the plea had never
been entered ab initio." State v. Vasquez, 918
So.2d 1016, 1017 (Fla. 2d DCA 2006) (quoting Williams v.
State, 762 So.2d 990, 991 (Fla. 4th DCA 2000)); see
also Whitaker v. State, 881 So.2d 80, 82 (Fla. 5th DCA
2004) ("When a defendant successfully challenges and is
permitted to withdraw a plea of nolo contendere or guilty
which was entered as a result of a plea bargain, the
negotiated plea bargain is 'abrogated.' "
(emphasis omitted)); Williams, 762 So.2d at 991.
"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." State v. Simons, 22 So.3d 734,
737 (Fla. 1st DCA 2009); see also Bell v. State, 262
So.2d 244, 245 (Fla. 4th DCA 1972). Allowing a defendant to
renege on an agreement without consequence is certain to open
the Pandora's Box the dissent brings up, by allowing for
gamesmanship through the entry and withdrawal of pleas. But,
permitting the State "to proceed as if a plea had never
been entered, " King v. State, 870 So.2d 69, 70
(Fla. 2d DCA 2003), forecloses the abuses the dissent's
such, once the court permitted Small to withdraw her plea to
the sale charge, the bargained for nolle prosse was likewise
withdrawn, and the status quo ante restored. Small, however,
insists that because the State had entered the nolle prosse,
it was required to refile an information charging her with
possession. We disagree. "[T]he only purpose of an
indictment [or information] is to apprise a defendant of the
charge against him. . . . An indictment or information . . .
is nothing more or less than the vehicle by which the state
charges that a crime has been committed." Dougan v.
State, 470 So.2d 697, 701 (Fla. 1985). Having been
properly charged prior to entering the plea agreement, Small
was fully aware of the charges against her, as well as the
State's intention to prosecute her on these two offenses
and thus-contrary to the dissent's position-she was
accorded due process. As such, refiling the information would
serve no meaningful purpose here. The withdrawal of the plea
resulted in a return to the status quo that existed before
the plea agreement was made, and the State was entitled to
"proceed as if a plea had never been entered."
King, 870 So.2d at 70.
argument that everything after the filing of a nolle prosse
is a nullity, is of little merit on these facts. That
argument ignores the subtle distinctions attendant to whether
the nolle prosse was pursuant to a plea agreement, as is the
case here, or was entered by the State at its own discretion
for any reason. "When, as in the present case, the plea
agreement involves 'charge bargaining, ' if the plea
is withdrawn the defendant must again face the original
charge as it existed prior to the state's offer [to nolle
prosse]." Fairweather v. State, 505 So.2d 653,
655 (Fla. 2d DCA 1987); Gonzales v. State, 766 So.2d
452, 454 (Fla. 3d DCA 2000) ("If the trial court permits
the defendant to withdraw his plea, the State must be
returned to the same position it was in before the plea
agreement . . . .").
withdrawing her plea, Small was returned to the position she
was in before entering the plea, facing charges of sale of a
controlled substance and possession of a controlled substance
with intent to sell, which the State had properly charged
before Small had entered her plea-a fact the dissent attaches
little importance to. The State was merely proceeding on the
charges in the original information when it resumed its
prosecution of Small. Small was not denied due process or
prejudiced by the course of the proceedings-caused solely by
her entry and subsequent withdrawal of a plea-and the
interests of justice do not warrant a contrary finding.
See Baker v. State, 4 So.3d 758, 760 (Fla. 1st DCA
2009) (explaining the standard for fundamental error).
Accordingly, we affirm. Affirmed.
LaROSE, C. J, Concurs with opinion.
MORRIS, J., Dissents with opinion.
LaROSE, Chief ...