>> OUR NEXT CASE OF THE DAY ISDEBRA LAFAVE VERSUS STATE OFFLORIDA.>> YOU MAY PROCEED.>> MAY IT PLEASE THE COURT.I'M JULIUS AULISIO.I REPRESENT DEBRA LAFAVE THEPETITIONER IN THIS CASE.WE'RE HERE ON A CERTIFIEDQUESTION FROM THE SECONDDISTRICT COURT OF APPEALESSENTIALLY, IT'S A QUESTION OFWHETHER THE STATE MAY SEEKREVIEW BY PETITION OF WRIT OFCERTIORARI, A TRIAL COURT'SORDERLY TERMINATING PROBATION.BACK IN 2005 MISS LAFAVEENTERED NEGOTIATED PLEA WITHTHE STATE AND ENTERED ANEGOTIATED PLEA TO TWO COUNTS OFLEWD AND LASCIVIOUS BATTERY.SUBSEQUENT NEGOTIATED A PLEA SHEWAS PLACED ON THREE YEARSCOMMUNITY CONTROL FOLLOWED BYSEVEN YEARS PROBATION.>> IN A NEGOTIATED PLEA BASICALLYSAID THAT INSTEAD OF GOING TOPRISON, FOR THE, GUESS IT WASLEWD AND LASCIVIOUS MOLESTATIONOF A 14-YEAR-OLD?>> YES.>> THAT SHE WOULD GET COMMUNECONTROL, PROBATION, WITH THECONDITION THAT, SHE WOULD NOTSEEK EARLY TERMINATION OF HERPROBATION.THIS IS WHAT THE NEGOTIATED PLEAWAS, CORRECT?>> WELL, THAT'S NOT THE EXACTLANGUAGE OF THE, THELANGUAGE THAT THE NEGOTIATEDPLEA SAID THAT, SHE CAN NOT SEEKTO HAVE HER COMMUNITY CONTROLCONVERTED TO PROBATION UNTIL SHESUCCESSFULLY COMPLETED AT LEASTTWO YEARS OF COMMUNITY CONTROL.>> SO YOU'RE TELLING US, IT WASNOT A, YOU WILL NOT SEEK EARLYTERMINATION OF YOUR PROBATION?>> WELL, I'M NOT FINISHED YET.

>> OKAY.>> THE PART OF THE PROBATION ITSAID, YOUR CLIENT WILL NOT BEALLOWED EARLY TERMINATION OFPROBATION.SO THE, THE PLEA AGREEMENT, ITWAS VERY SPECIFIC LANGUAGE,THAT -->> BUT WOULDN'T YOU CONCEDE THATTHAT STATEMENT, IMPLIES THAT, IFSHE IS NOT GOING TO BE ALLOWED,IT WOULD IMPLY THAT THE CLIENTCOULD NOT SEEK IT?>> CERTAINLY.WE'RE, IT DOES IMPLY THATHOWEVER, THERE IS CASE LAW THATSAYS, WHEN DEALING WITHNEGOTIATED PLEAS, THE GOVERNMENTCERTAINLY IS IN A SUPERIORPOSITION THAN THE CLIENT OR THEDEFENDANT AND THAT THEGOVERNMENT IS HELD TO HIGHERRESPONSIBILITY FOR ANYAMBIGUITIES OR IMPRECISION.>> THE FACT THAT IT ISUNAMBIGUOUSLY IMPLIES THAT, THEFACT THAT IT IS IMPLIED DOESN'TMEAN IT IS AMBIGUOUS?YOU CAN'T READ THAT AND COME TOTHE CONCLUSION THAT NOTWITHSTANDING THAT, SHE WOULD BEPERMITTED TO SEEK SUCH EARLYTERMINATION OF PROBATION, CANYOU?>> WHY NOT?IT DOESN'T SPECIFICALLY SAY,WELL, MAYBE STAND ALONE NO, BUTYOU HAVE TO COMPARE IT TO THEFIRST PART OF THE PLEA AGREEMENTWHERE THE PLEA AGREEMENT SAIDTHAT, YOU KNOW IT SPECIFICALLYSET OUT, SHE COULD NOT SEEK TOHAVE HER COMMUNITY CONTROL CONVERTED TO PROBATION, IFTHE STATE WANTED TO BIND HERFROM SEEKING PROBATION, THEYCOULD HAVE EASILY SAID ITBECAUSE THEY SAID IT IN THE PARTABOUT COMMUNITY CONTROL.>> WE HAVE TO ASSUME FOR

PURPOSES OF -- HERE,CONTRAVENE -- [INAUDIBLE]IF SECOND DISTRICT IS WRONG ONTHE MERITS, THAT'S ONE THING BUTIF THE QUESTION IS, IS THE THIRDDISTRICT RIGHT IN 2002 WHEN ITSAID YOU CAN NOT USE CERT FOR AFINAL ORDER OR IS THE SECONDDISTRICT RIGHT THAT IN CERTAINCIRCUMSTANCES YOU CAN?SO I FEEL, IF YOU SAY NO, NO,THE TRIAL COURT WAS RIGHTBECAUSE IT DIDN'T VIOLATE THEPLEA AGREEMENT, THEN IT'S, ANON-ISSUE.THE ISSUE OF CERT VERSUS ANAPPEAL IS NOT AT ISSUE.DO YOU UNDERSTAND WHAT I'MSAYING?>> I'M NOT -->> THE QUESTION IS, EVEN, ITHOUGHT WE WERE ASSUMING THATTHE ORDER CLEARLY PROVIDED FOR,THAT SHE COULDN'T SEEK EARLYTERMINATION.SO LET'S, LET'S ASSUME THAT ITDOES, CLEARLY PROVIDE FOR IT.IN THE TRIAL COURT STILL, CANTHE TRIAL COURT STILL DO WHAT ITDID AND EVEN IF THE TRIAL COURTREALLY CAN'T, BECAUSE THE PLEAAGREEMENT IS CLEAR, IS STILL AREMEDY FOR THE STATE?>> NO, I THINK THAT THE TRIALCOURT COULD EARLY TERMINATEPROBATION.>> I KNOW YOU THINK THAT.WHAT I'M, I THOUGHT THE ISSUE ISTHERE A REMEDY FOR THE STATEEVEN IF IT'S WRONG THROUGH CERT?THE THIRD DISTRICT IN 2002 SAIDTHAT LEGISLATURE SHOULD CONSIDERAMENDING THE STATUTE TO PROVIDEFOR THE STATE'S RIGHT OF APPEALIN THIS TYPE OF SITUATION.THE LEGISLATURE DIDN'T.NOW WE'RE, WE KNOW THERE IS NORIGHT OF APPEAL.THE QUESTION IS, YOU KNOW,ASSUMING THERE'S A CASE AND

THAT CLEARLY PROVIDES, YOU CAN'TDO SOMETHING, AND THE JUDGE DOESIT, IS THERE A, DOES THE STATEHAVE A RIGHT TO SEEK A PETITIONFOR WRIT OF CERTIORARI?>> IF THERE'S A CASE THATCLEARLY PROVIDE A JUDGE CAN NOTDO SOMETHING, AND IF IT IS ANINTERLOCUTORY PRETRIAL ORDER,THEN, YE, THEY CAN -->> WE'RE TALKING ABOUT, THIS ISA FINAL ORDER, RIGHT?>> THE PETITIONER CONTENDS IT'S AFINAL ORDER.AND I MEAN THAT IS PART OFTHE -- >> IT SEEMS TO ME, THAT THISCASE IS IN A POSTURE WHEREEVERYONE HAS AGREED THAT THIS ISA FINAL ORDER.SO WE'RE GOING TO ASSUME HERETHIS IS A FINAL ORDER. BECAUSETHE STATE SOUGHT CERT, IWOULD ASSUME THEY HAVE NO RIGHTTO APPEAL BECAUSE IT WAS A FINALORDER, AND IT DOESN'T FALL UNDERANY OF THOSE CATEGORIES OF WHENTHE STATE CAN APPEAL A FINALORDER, OKAY?SO IF WE ASSUME THAT, THEN LET'SGET TO THE ISSUE AS JUSTICEPARIENTE SAID, THE ISSUE HEREIS, DOES THE STATE, IN THISFINAL ORDER HAVE A RIGHT TO SEEKCERT?>> IF YOU SAY THEY DON'T, WHYDON'T THEY?IS THIS A DEPARTURE FROM THECENTRAL REQUIREMENTS OF LAW ORDOES THAT EVEN COME INTO PLAY ATTHE POINT OF WHETHER OR NOT ACOURT HAS JURISDICTION?>> IT DOESN'T COME INTO PLAYWHETHER IT'S DEPARTURE FROMCENTRAL REQUIREMENTS OF LAWBECAUSE STATE v. PETTIS SAYSYOU CAN NOT TAKE, YOU CAN NOTUSE A PETITION OF WRIT OF CERTFOR A FINAL ORDER.IT IS CLEAR.

THERE'S, THERE ARE CERTAINSITUATIONS WHERE THERE IS NOREMEDY FROM A TRIAL COURT'SDECISION, A TRIAL COURT INCERTAIN INSTANCES IS THE COURTOF LAST RESORT.FOR INSTANCE, ON A MOTION FORJUDGMENT OF ACQUITTAL BEFOREVERDICT.THE TRIAL COURT ENTERS A MOTIONFOR JUDGMENT OF ACQUITTAL.IS THERE NO REMEDY TO THE STATE?>> WELL, THAT IS BECAUSE OF THEDOUBLE JEOPARDY, PROTECTION,ISN'T THAT CORRECT?>> YES.>> OKAY.WE'VE GOT A CATEGORY OF THINGSLIKE THAT.THIS IS NOT ONE OF THOSE.THIS HAS GOT NOTHING TO DO WITHDOUBLE JEOPARDY HERE, IS THATCORRECT?>> I DISAGREE.THE PROBATION, THE PROBATION,SHE CURVED COMMUNITY CONTROL,PROBATION, SHE PLEADEDSUCCESSFULLY, COMPLETED UP TOTHAT POINT.ONCE THE TRIAL JUDGE ENTERS THEORDER OF TERMINATION OFPROBATION, JEOPARDY IS ATTACHED,THE CASE IS COMPLETE.THERE IS NO FURTHER ACTION TO BEDONE IN THE CASE.SO IT IS OVER.>> THAT, YOU WOULD ARGUE THAT ISONLY, THAT IS ONLY SO BECAUSETHERE IS NO RIGHT OF APPEAL WITHRESPECT, THAT THE STATE HAS WITHRESPECT TO THAT?IF THE STATE HAS, IF THE STATEHAD A RIGHT OF APPEAL, WITHRESPECT TO A DECISION SUCH ASTHAT, WOULD DOUBLE JEOPARDYAPPLY?>> I -->> WOULD PRECLUDE THE APPEAL?>> YES.THAT, THAT RULE MIGHT VIOLATE

CONSTITUTIONAL PROVISIONSAGAINST DOUBLE JEOPARDY BECAUSEONCE A CASE IS COMPLETE, YOUCAN'T COME BACK AND DOANYMORE -->> BUT THEY, THEY CAN APPEAL THEWHAT THE STATUTE REFERS TO ASSENTENCES THAT ARE ILLEGAL,RIGHT?THAT IS NOT SUBJECT TO, IF THECOURT, FOR INSTANCE, FAILS TOIMPOSE A MANDATORY MINIMUMTHAT'S REQUIRED, THAT CAN BEAPPEALED, CAN'T IT?>> I DON'T -->> WITHOUT VIOLATING DOUBLEJEOPARDY?>> I DON'T THINK SO.I THINK THERE ARE SOME CASESTHAT, I'M NOT POSITIVE ABOUTTHAT BUT I THINK THERE ARE SOMECASES.AS LONG AS IT IS NOT AN ILLEGALSENTENCE, IT CAN NOT BEAPPEALED.THE STATE HAS A RIGHT TO APPEALAN ILLEGAL SENTENCE BUT IF IT ISNOT ILLEGAL, THEN THEY DON'THAVE THAT RIGHT.>> ISN'T THE ISSUE HERE, THELEGISLATURE HAS GRANTED THERIGHT OF APPEAL TO THE STATE INCERTAIN CATEGORIES OF FINALORDERS, AND, WE HAVE IN,RECOGNITION OF THAT, SAID NO,THERE IS NO, WE CAN'T CREATEOTHER APPEALABLE FINAL ORDERS.IN PRETRIAL CERT'S AVAILABLE.SO AGAIN WHAT I THINK, BUT IFTHEY DECIDED, IF TOMORROW THELEGISLATURE SAID, YOU KNOW, THISLAFAVE CASE IS A GOOD EXAMPLE OFSOMETHING WE DON'T THINK SHOULDHAPPEN.ONCE THERE IS A CLEAR PLEAAGREEMENT.THE JUDGE OUGHT NOT TO BE ABLETO VARY THE TERMS BY TERMINATINGPROBATION EARLY.I REALIZE, YOU SAY THEY STILL

HAVE THAT INHERENT RIGHT.YOU'RE NOT SAYING THAT IF THATAPPEAL WAS CREATED BY STATUTE,THAT IT WOULD BEUNCONSTITUTIONAL BECAUSE ITWOULD VIOLATE DOUBLE JEOPARDY?>> IT'S POSSIBLE.I MEAN THAT'S -->> BUT MANDATORY, DOWNWARDDEPARTURES, I THINK IN THE LAST10 YEARS OR SO THE STATE CANAPPEAL DOWNWARD DEPARTURES IBELIEVE.I KNOW THEY CAN GET RELIEF IFTHE JUDGE DOWNWARDLY DEPARTS.THERE IS NO RELIEF ON THE OTHERSIDE BUT THERE IS RELIEF, THELEGISLATURE HAS EXPRESSED THISINTENT, TO NOT ALLOW JUDGES TOGO BELOW SOMETHING THAT THEYHAVE SET FORTH.SO I DON'T SEE HOW IT WOULD BE ACONSTITUTIONAL VIOLATION TOALLOW AN APPEAL OR, TO ALLOWCERT IF WE OTHERWISE HAD THEPOLICY OF, OF IMPETUS OR THETHIRD DISTRICT DON'T STAND FORTHE SAME PROPOSITION.SO I MEAN YOUR ARGUMENT HERESORT OF TO ME HAS TO BE, THECOURT HAS SET A POLICY IN PETTISHAS STATED IN ITS CASE THAT CERTSHOULD NOT BE USED IN FINALORDERS.I MEAN THAT IS THE RULE OF LAW.>> RIGHT.>> AND THEN MY QUESTION REALLYIS, WHY IN A SITUATION LIKE THISIF THE, IF WE FIND THAT THECOURT CLEARLY VIOLATED THE PLEAAGREEMENT, OF THE PARTIES, WHYSHOULDN'T WE ALLOW REVIEW BYCERT?I MEAN WHAT IS, LET'S ASSUME NODOUBLE JEOPARDY, WHAT IS THE,ISN'T THERE HARM TO ALLOW ADEFENDANT TO GET AROUND ANEGOTIATED PLEA AGREEMENT IS,REALLY, FOR THE COURT'S TOSANCTION IT, WOULD BE BAD PUBLIC

POLICY?>> WELL THERE'S, THERE IS NOAUTHORITY FOR THE STATE TONEGOTIATE AWAY THE THIRD PARTYWHO IS THE JUDGE, THE TRIALJUDGE, TO NEGOTIATE AWAY THEJUDGE'S STATUTORY AUTHORITY TOEARLY -->> THE TRIAL COURT ACCEPTED, THETRIAL COURT ACCEPTED THE PLEA.NOW, IF THERE'S NO SUGGESTIONHERE THAT THERE WAS A PROBLEMIN THE PROCESS THAT WASFOLLOWED.THE, THIS CONTRACT, ASSOCIATEDWITH THE PLEA AGREEMENT, WASSOMETHING THAT WAS BEFORE THETRIAL COURT.THE TRIAL COURT ACCEPTED IT.IF THE TRIAL COURT DID NOT LIKETHIS PARTICULAR PROVISION, THETRIAL COURT, I THINK COULD HAVESAID, I'M NOT ACCEPTING THIS,ISN'T THAT CORRECT?>> I'M SURE THE TRIAL COURTCOULD HAVE REJECTED IT.>> BUT THE TRIAL COURT DID NOTDO THAT?>> I DON'T THINK IT WAS AN ISSUEAT THAT POINT.>> OH, I UNDERSTAND.>> WHEN THEY COME -->> IT MIGHT HAVE BEEN AN ISSUEFOR THE STATE.THAT'S WHY THEY PUT IT IN THATAGREEMENT.>> RIGHT.BUT THERE IS CASE, THEY KNEW ORSHOULD HAVE KNOWN THAT THEY CANNOT BIND THE TRIAL COURT BECAUSETHE, THAT INFRINGES ON THE TRIALCOURT'S JURISDICTION OF, OVERTHE SUPERVISORY PROBATION.THE TRIAL COURT ALWAYS HASJURISDICTION OVER PROBATION.THAT'S WHY PROBATION IS AWITHHOLD OF IMPOSITION OFSENTENCE.IT IS NOT -->> IN WHAT CASE DO YOU SAY THAT

THE STATE SHOULD HAVE BEEN AWARETHAT THEY COULDN'T PUT THATPROVISION IN?>> MARCENIK HOLDS THAT, OR,BAKER, BAKER WAS A CASE THATSAID THAT YOU CAN'T PREVENT AJUDGE FROM, A FUTURE CIRCUITCOURT JUDGE FROM EARLYTERMINATING PROBATION.AND THERE IS THE ARIZONA CASEWITH PATEL -->> UNDER WHAT CIRCUMSTANCES OFTHAT CASE?>> THE BAKER CASE?BAKER, THE TRIAL JUDGE IMPOSED ACONDITION OF PROBATION, NO EARLYTERMINATION OF PROBATION.>> YOU SAID THE TRIAL COURT,THAT WAS THE TRIAL COURT'S DEAL,WITH THEM?IT WASN'T THE STATE'S SEPARATECONTRACT AS THE PLEA AGREEMENTIS WITH THE STATES?>> THAT WAS NOT A PLEA AGREEMENTSITUATION.THE ARIZONA CASE, STATE v.PATEL WAS A PLEA AGREEMENTSITUATION WHERE THEY ASKED -->> LET ME ASK YOU EARLIER.YOU MENTIONED, FOR THE COURT,[INAUDIBLE]SUCH AS GOING UNDERNEATH THEGUIDELINES FOR ILLEGAL PURPOSESNOT ALLOWED, THEY CAN APPEALTHAT YOU MENTIONED THAT.>> THERE IS SPECIFIC PROVISIONTHEY CAN APPEAL UNDER GUIDELINESSENTENCE.THAT IS NOT NECESSARILY ILLEGAL?>> BUT A ILLEGAL SENTENCE THESTATE CAN APPEAL THAT?>> RIGHT.>> THERE IS NO DOUBLE JEOPARDYPROBLEM?>> RIGHT.BECAUSE BASICALLY THE SENTENCEIS VOID AB INITIO.>> THERE IS STATUTES, THATBASICALLY DON'T ALLOW PROBATIONIN CASE, AREN'T THERE?

I MEAN MANSLAUGHTER?>> SURE.FIRST-DEGREE MURDER.>> IF A COURT WERE TO SENTENCESOMEONE CONVICTED OFFIRST-DEGREE MURDER TOPROBATION, THAT COULD BEAPPEALED, BECAUSE THAT IS ANILLEGAL SENTENCE?>> CORRECT.>> IN THIS PARTICULAR CASE, THEPARTIES ENTERED INTO A CONTRACT.WOULD YOU A GUY THAT A PLEAAGREEMENT IS CONTRACT BETWEENTHE STATE AND THE DEFENSE?>> YES.>> AND THE CONTRACT PROVIDEDTHAT IT WOULD BE NO EARLYTERMINATION OF PROBATION?>> YES.>> OKAY.COURT CLEARLY VIOLATED THATCONTRACT, DIDN'T?>> THE CONTRACT IS BETWEEN THESTATE AND THE DEFENDANT WHICHCAN NOT BIND THE TRIAL COURT.>> THAT IS YOUR POSITION?>> YES.>> UNDER THAT POSITION THEN THESTATE AND THE DEFENSE CAN AGREETO AN ILLEGAL SENTENCE?AND THE COURT ASKED HIM TO DOPROBATION, FOR EXAMPLE IN AFIRST-DEGREE MURDER CASE?>> NO, THEY CAN'T AGREE TO ANILLEGAL SENTENCE.>> JUST GETS TRICKY WITH ME.I THINK WHAT YOU'RE ASKING US TODO IS WRITE AN OPINION THATBASICALLY SAYS THAT STATE ANDDEFENSE CAN AGREE, A NEGOTIATEDPLEA, THROUGH NO EARLYTERMINATION OF PROBATION, ANDTHAT IS GOING TO BENON-ENFORCEABLE?>> MO.IT COULD BE ENFORCEABLE IF THEYSPECIFICALLY SAID, THAT THEDEFENDANT CAN NOT SEEK EARLYTERMINATION OF PROBATION.

>> ISN'T THAT WHAT THE DEFENDANTSAID HERE?>> NO.SAID IT WILL NOT BE ALLOWEDEARLY TERMINATION OF PROBATION.>> BUT IF YOU TAKE YOUR ARGUMENTTO THE EXTREME, SEEMS TO ME,DOESN'T MATTER WHETHER THE,IT'S, THE STATE, WHETHER THELANGUAGE SAYS, THEY WON'T SEEKIT, OR, THAT, YOU SHOULDN'T HAVEIT.IF YOUR ARGUMENT THAT THE TRIALCOURT ALWAYS RETAINS THE RIGHTTO EARLY TERMINATE, NO MATTERWHAT THE AGREEMENT SAYS, THEN ITDOESN'T MATTER WHETHER SHEACTUALLY AGREED OR THE LANGUAGEWAS SOMEWHAT AMBIGUOUS?THAT'S YOUR ARGUMENT, REALLY,ISN'T IT?>> IF YOU MAKE IT A VIOLATION OFTHE CONDITION OF PROBATION THENSHE WOULDN'T BE ABLE TO SEEKEARLY TERMINATION, IF YOU MADETHAT PART OF THE PLEA AGREEMENT.>> IF YOU MADE IT WHAT?>> PART OF THE PLEA AGREEMENT,THAT -->> SO UNDER THOSE CIRCUMSTANCES,THE TRIAL JUDGE, UNDER THESTATUTE THAT YOU REFERENCED,DOESN'T HAVE ANY AUTHORITY TOTERMINATE PROBATION?>> THE TRIAL JUDGE ALWAYS HASAUTHORITY TO TERMINATE -->> YOUR THEORY IS THAT THE TRIALJUDGE ALWAYS HAS THE RIGHT TOTERMINATE PROBATION EARLY,CORRECT?>> RIGHT.>> SO IT DOESN'T MATTER WHAT THELANGUAGE OF THE AGREEMENT IS?>> NO, BECAUSE, BECAUSE, EVENIF, IF THE, IF MISS LAFAVE DIDNOT SEEK EARLY TERMINATION OFPROBATION THEJUDGE COULD HAVE DONE IT ON HISOWN.WOULD LIKE THE REMAINDER

OF MY TIME FOR REBUTTAL.>> OK.>> CERESE TAYLOR FOR THE STATE.THE APPEAL HAS TO DO WITH ERRORS INTHE LAW.MISCHARACTERIZATIONS OF JUSTICETHAT AFFECT THE ADMINISTRATIONOF JUSTICE.PETTIS IS THE RESOLUTION THATBEGAN IN JONES.IF YOU DON'T HAVE TO RIGHT TOAPPEAL AND JUSTICE BOYD STEPSFORWARD AND LET'S BE CLEAR WHATWE'RE TALKING ABOUT HERE.>> CONCURRENCE IS NOTHING.>> I RECOGNIZE THAT IT IS NOTBINDING BUT IT DOES REPRESENTAND ALSO REPEATED AGAIN A SECONDTIME.THE THOUGHT PROCESS BEHIND THATSTATEMENT, BECAUSE THATSTATEMENT OF KNOW APPEAL, NOCERTIORARI, TAKEN LITERALLY,WOULD FORECLOSE, AVAILABILITY OFCERTIARI.PETTIS DOESN'T DO THAT.PETTIS SAYS, JONES, NOCERTIORARI.THAT IS TOO NARROW.WE'LL TAKE IT BACK A STEP.YOU DO HAVE A RIGHT TOCERTIORARI IN NONFINAL ORDERS.>> THAT GIVES THE RIGHT TO SEEKREVIEW IN EVERY CASE THEN?>> NO.>> NO, YOUR HONOR.>> IT DOES.YOU'RE SAYING DON'T GO BACK.IT IS TOO BROAD THERE.CERTAINLY WHAT YOU'RE SUGGESTINGIS JUST AS BROAD IN THEOTHER DIRECTION.>> WITH ALL DUE RESPECT, YOURHONOR, WHAT I'M SUGGESTING THEREMEDY WE'RE SEEKING IN THISCASE, RECOGNITION UNDER PETTISPETTIS, NEGOTIATED PLEAAGREEMENTS REVOLVE IN THEPARAMETERS OF PETTIS.THESE, WITH ALL DUE RESPECT TO

THE COURT, I DO UNDERSTAND WHYTHIS LOOKS LIKE A FINAL ORDER.MAYBE IT WAS INTENDED TO BE AFINAL ORDER BUT TO ACCORD ITFINALITY STATUS, TO PREVENT THESTATE FROM HAVING ANY BASIS TOADDRESS A MISCARRIAGE OFJUSTICE.>> WOULD THE LEGISLATURE INDECIDING WHICH CATEGORIES OFORDERS, FINAL ORDERS SHOULD BEAPPEALED, MAKES THEDETERMINATION FROM THE MOSTCOMPELLING REASON TO THE LEASTCOMPELLING.AND THEY ARE NOT SET.YOU'RE SAYING THIS IS SOCOMPELLING.IF IT IS SO COMPELLING, THEREOUGHT TO BE A RIGHT OF APPEAL?>> I'M INTO THE SURE -->> I'M NOT SURE IF WE ADOPT THEREASONING OF THE THIRD DISTRICTYOU'RE OUT OF LUCK IN THIS CASE,IS THAT CORRECT?YES?>> YES.>> THE JORDAN CASE?>> IS THAT THE THIRD DISTRICT?BUT JORDAN IS DISTINGUISHABLE.>> SEEMS TO ME THEY ARE REALLYKIND OF PARALLEL CASES.IF I RECALL JORDAN.>> THAT WAS A, FAILURE TO DOSOME SUBSTANTIAL ASSISTANCE,RIGHT?>> UH-HUH.>> SO THE SENTENCE THAT THEDEFENDANT BASED ON, THEAGREEMENT THAT HE, ANOTHER, SORTOF CONTRACT,.>> RIGHT.>> THAT HE WOULD PROVIDESUBSTANTIAL ASSISTANCE.AND WHEN HE DID NOT DO THESUBSTANTIAL ASSISTANCE, THETRIAL JUDGE GAVE HIM THESENTENCE ANYWAY.>> RIGHT.>> RIGHT.

>> CORRECT?>> RIGHT.>> HOW DO YOU ACTUALLY GETAROUND THAT CASE?SEEMS VERY SIMILAR TO ME, TOTHIS SITUATION?AND KEEPING IN MIND THAT PETTISWAS DECIDED IN 1988 AND THIS ISA 2001, JORDAN IS A 2001 CASE?>> YOUR HONOR.PRESENTED A COUPLE OF THINGS IWANT TO ADDRESS.FIRST OF ALL, I CAN NOT EXPRESSENOUGH, THAT WE'RE NOT TALKINGABOUT THE RIGHT OF APPEAL.ALTHOUGH IT WOULD BE NICE TO SEEAN EVOLUTION OF RIGHT OF APPEALFOR STATE TO REFLECT THESITUATION.>> I UNDERSTAND BUT JORDAN SAYS,YOU DON'T, THERE WAS NO RIGHT TOAPPEAL AND IT SAYS, THERE WAS NORIGHT FOR THE STATE TO SEEKCERT.>> DO YOU NOT AGREE, I MEAN THISCOURT HAS NO POWER TO CREATE ARIGHT OF APPEAL FROM FINALORDERS?>> ABSOLUTELY.THAT IS WHY -->> I'M AT A LOSS BECAUSE YOU'REARGUING THAT IS WHAT OUGHT TOHAPPEN IN THIS CASE.>> WHAT I'M ATTEMPTING TO DO,YOUR HONOR, MAYBE NOT ASSUCCESSFULLY AS I WOULD LIKE, SOLET ME BE CLEAR.I'M TRYING TO ADDRESS JUSTICEPARIENTE'S CONCERN ABOUT WHETHEROR NOT WE'RE SEEKING ANEVOLUTION IN THE LEGISLATIVEBRANCH AND HAVING AN APPEALRIGHT ESTABLISHED.THAT IS NOT WHAT WE'RE DOING.WHAT I'M TRYING TO DO, JUSTICELEWIS I ASKED WHAT YOU HAVE ASKEDABOUT IS PETTIS AND WHETHERPETTIS COVERS THE CIRCUMSTANCESIN THIS CASE.WE'RE NOT LOOKING FOR, IN

JORDAN, YOUR HONOR THE STATE HASNOT GIVEN ITS FULL MEASURE OFCONSIDERATION AND THE DEFENDANTHAD NOT CEDED FULL MEASURE OFCONSIDERATION.WE WERE AT SORT OF A SENTENCINGSTAGE.THIS IS A POST-SENTENCING, THEREIS A REASON THAT THE SECONDDISTRICT CALLED THIS A RARE POSTSENTENCING ORDER.THIS IS NOT THE KIND OF THINGTHAT PETTIS COULD CONTEMPLATE.THE CASE IS ESSENTIALLY DONE BUTTHERE IS SUPERVISORY POSITIONTHAT THE TRIAL COURT HOLDS ATTHAT TIME YOU HAVE ONE PARTY TOTHE AGREEMENT, PETITIONER INTHIS CASE, FAILING TO ABIDE BYTHE NEGOTIATING TERMS.THESE WERE FAVORABLE, BEYONDFAVORABLE NEGOTIATED TERMS TOWHICH THE PETITIONER RECEIVEDTHE ENTIRE BENEFIT.AT THE END THE DAY, WHEN THESTATE WAS STILL ENTITLED TO ITSCONSIDERATION, UNDER THEAGREEMENT, THE STATE WAS BARREDFROM THE ASSERTING THAT.AND THAT IS A DEPARTURE FROM THEESSENTIAL REQUIREMENTS OF THELAW WHICH PETTIS RECOGNIZESRETAINS ITS VIABILITY, DESPITETHE FACT THERE IS NO APPELLATERIGHT BECAUSE THE FACT THERE ISNO APPELLATE RIGHT.THAT IS WHY JUSTICE BOYDCAUTIONED AGAINST READING PETTISTO SAY, THAT NO APPEAL IS NOCERTIORARI BECAUSE, IF THERE ISA DEPARTURE FROM THE ESSENTIALREQUIREMENTS OF THE LAW, THEDISTRICT COURTS OF APPEAL INTHEIR SUPERVISORY CAPACITY, MUSTRETAIN THE POWER TO REACH DOWNAND CORRECT IT.>> IF WE ALLOW THAT IN THISCASE.>> YES.>> WHERE DO WE DRAW THE LINE?

>> OKAY THE -->> WAIT A MINUTE.>> SORRY.>> SEEMS TO ME IT'S A PRETTYCLEAR LINE RIGHT NOW LINE THATCERTIORARI IS AVAILABLE FORNON-FINAL ORDER.>> OKAY.WE'RE TAKING FOR THE SAKE OFTHIS ARGUMENT THIS IS A FINALORDER.>> OKAY.>> I MEAN I CAN, ENVISION ANYKIND OF FINAL ORDER COMING DOWNAND THE STATE SAYING, OH THISWAS SO DISASTROUS.WE SHOULD HAVE, WE REALLY NEEDTO BRING THIS ISSUE TO THECOURT'S ATTENTION, AND WE'REOPENING UP CERTIORARI TO AWHOLE, A WHOLE LINE OF OTHERKINDS OF ISSUES.>> I UNDERSTAND WHAT YOU'RESAYING, YOUR HONOR.I UNDERSTAND THAT CONCERN.TWO THINGS.ONE, CERTIORARI IS SELF-LIMITINGBUT ITS OWN CREATION.IT IS NOT ADDRESSING ERRORS.IT IS ADDRESSING MISCARRIAGES OFJUSTICE, DEPARTURES FROM THELAW, BY A JUDICIAL OFFICER.SO, CERTIORARI TAKES CARE OFITSELF IN LIMITING ITSELF.SECONDARILY, HOW THE STATEFASHION THIS IS REMEDY IS TOCONSIDER IT IN THIS WAY, WHENYOU HAVE A POST-SENTENCINGCONFLICT REGARDING THENEGOTIATED PLEA, AND ITSAPPLICATION, IN THAT LIMITED,NARROW CIRCUMSTANCES, CERTIORIWOULD-BE LIE TO PERMIT THE STATEREVIEW.THE RESULT IF WE DO NOT HAVEAN AVENUE OF REVIEW, AS THISCOURT ALREADY RECOGNIZED, IS,INDIVIDUALS FINDING THEMSELVESNOT BOUND BY THE AGREEMENTS THATTHEY ENTERED INTO WILLING,

KNOWINGLY, NEGOTIATED, RECEIVEDSUBSTANTIAL BENEFITS FOR.IF THAT IS ALLOWED TO OCCUR, THESTATE WOULD HAVE NO INCENTIVE TOPARTICIPATE IN THE PLEA PROCESS.WHAT INCENTIVE DOES THE STATEHAVE TO PARTICIPATE, WHAT ISSENTENCE ANYBODY HAS?>> THIS HAS ONLY BEEN GOING ON20 YEARS.WHY DOESN'T THE LEGISLATURE, THESTATE, CHANGE IT IF IT IS WRONG?>> YOUR HONOR, BECAUSE PERHAPSTHIS CASE IS IN THE HIGHESTCOURT OF THE STATE SOME ACTIONWILL BE TAKEN.WE CAN NOT WAIT FOR LEGISLATURETO ADDRESS MISCARRIAGES OFJUSTICE IN A CERTAIN CONTEXT.THAT IS THE DUTY OF THE COURT.>> LET ME ADDRESS HOW AWFUL THISIS.YOU DO HAVE 948.05 THAT GIVES, ITWOULD APPEAR IT DOESGIVE COURT AUTHORITY TO BE ADMONISHED OR COMMENDED.SATISFIED THE ACTION WILL BEBEST INTEREST OF JUSTICE ANDWELFARE OF SOCIETY MAY DISCHARGETHE PROBATIONER OR OFFENDER FROMFURTHER SUPERVISION.THE STATE DOES MAKE AN ARGUMENTTHAT MISS LAFAVE WAS ACTUALLY,IF, BUT FOR THE PROVISION, THATSHE DIDN'T DESERVE TO BETERMINATED FROM PROBATION ANDELIMINATE THE COST TO THE STATEFROM CONTINUING TO SUPERVISEHER.THIS OCCURRED IN 2000, THESECOND DISTRICT CASE IS 2011.WE'RE IN 2013.WAS THIS ORDER STAYED?I MEAN DID SHE COMPLETE HERPROBATION THEN OR WHAT HAPPENED?IS SHE -->> SHE IS PRESENTLY SERVINGPROBATION.>> SO SHE'S ACTUALLY, SO THE,BECAUSE OF SOMETHING ELSE?

>> BECAUSE AFTER SECOND DISTRICTORDER.>> OKAY.SO IN TERMS OF THIS, IF WE ARETO QUASH THE SECOND DISTRICT, INTHIS PARTICULAR CASE, THE STATEGOT THE REMEDY OF, THAT SHE,STAYED ON PROBATION?AND I'M NOT, I JUST, WHEN YOUTALK ABOUT SOMETHING BEING SUPERAWFUL, TERRIBLE, MISCARRIAGE OFJUSTICE, WANT TO BRING IT DOWNTO WHAT WE'RE TALKING ABOUTHERE.>> OKAY.>> IT JUST SEEMS, SO SHE IS,AND SHOULD HAVE, DOES SHE HAVEMORE YEARS OF PROBATION?>> I DON'T KNOW EXACTLY THENUMBER BUT THERE ARE MORE.>> HAS SHE EVER, WAS THERE EVERANY EVIDENCE SHE HAD VIOLATEDTHE PROBATION IN THE RECORD?>> NOT SUBSTANTIAL, WILLFULVIOLATION.>> OKAY SO GOING BACK TO THIS,I'M STILL NOT SURE, FOLLOWING UPON JUSTICE QUINCE'S QUESTION,WHY THE BETTER POLICY ISN'T TOSAY THE STATE HAS A THE RIGHT TOAPPEAL WHEN THE TRIAL COURTENTERS A ORDER, FINAL ORDER,THAT IS IN VARIANCE WITH THEPLEA AGREEMENT.END OF THE STORY.I MEAN, AND, THE BOTTOM LINE IS,I WOULD IMAGINE IN THE FUTURETHE STATE WILL TAKE MEASURE WHENTHEY'RE SEEKING APPROVAL OF THETRIAL COURT TO MAKE SURE THETRIAL COURT IS NOT ONLYACCEPTING THE PLEA BUT SPECIFICSOF WHAT THEY CAN AND CAN'T DO.I MEAN, AGAIN YOU'RE JUSTPREDICT ALL THESE HORRIBLETHINGS HAPPENING AND I'M JUSTNOT SURE THAT, THAT, THAT'S THECASE.>> WITH ALL DUE RESPECT, YOURHONOR, SIDES OF THE BENCH ARE

CONCERNED WITH PARALLELQUESTIONS.PUT ABILITY OF PETTIS AND NUTSAND BOLTS OF THIS CASE, I DON'TMEAN TO SUGGEST THAT THIS IS,THAT'S NOT REALLY TRUE.I DO MEAN TO SUGGEST, THAT THEIMPACT OF THIS CASE ISFAR-REACHING.WITH REGARD TO WHETHER OR NOTSHE COMPLIED WITH SPECIFICELEMENTS OF HER PROBATION THATREALLY ISN'T WHY WE'RE HERE.THAT IS A REALLY A QUESTION FORTHE TRIAL COURT, IF 948.05 WERETO APPLY.I NEED TO TALK ABOUT WHAT YOUSAID ABOUT IN THE FUTURE WHEN WEENGAGE IN PLEA AGREEMENTS WEWOULD SEEK TO BIND THE JUDGE ORTHAT KIND OF THING.WHAT JUSTICE QUINCE SAIDEARLIER, IS ABSOLUTELY RIGHT.NO MATTER WHAT LANGUAGE WE USE,IF YOU GIVE THE PETITIONERSTHEIR ARGUMENT THERE IS NO WAYFOR US TO OBTAIN RELIEF.948.05 SAYS YOU CAN OBTAINRELEASE FROM EARLY TERMINATIONOF YOUR PROBATION IF IT IS INTHE BEST INTEREST OF SOCIETY ANDSOCIETY'S WELFARE.THAT IS SOMETHING THAT THE TRIALJUDGE CAN ENGAGE IN SUA SPONTE.THAT IS NOT WHAT HAPPENED INTHIS CASE.THE PARTNER IN THIS CASECONTRACTED AWAY HER ABILITY TOOBTAIN THAT RIGHT.>> WHY WOULD YOU SAY THAT?THE TRIAL JUDGE DID NOT APPLYTHAT STANDARD WHETHER IT WAS INTHE BEST INTERESTS OF EVERYONETO CONTINUE PROBATION?WHAT STANDARD DOES THE TRIALJUDGE USE?I LIKE THE DEFENDANT.LET, I'M GOING TO TERMINATE?>> THE REASON WHY I SAY THATYOUR HONOR, WHAT THE TRIAL COURT

SAID, SHE COMPLIED LARGELY.SHE DID WHAT SHE WAS SUPPOSED TODO.BUT WHAT SHE DID NOT DO WASSERVE THE ENTIRE PROBATIONARYTERM.AND I, OUR POSITION IS THAT ITIS NOT IN THE BEST INTERESTS OFSOCIETY TO ALLOW SOMEONE WHO ISON SEXUAL OFFENDER PROBATION,WHICH IS A SPECIFIC TYPE OFPROBATION, INTENDED TO CONSIDERTHE PERSON, TO MONITOR THEM,CAREFULLY FOR THE ENTIRESUPERVISORY PERIOD OF THE IT ISNOT IN OUR BEST INTERESTS TO LETSOMEONE ON SEXUAL OFFENDERPROBATION OFF EARLY.WHEN YOU LOOK NOT ONLY THE PLEABUT THE JUDGMENT AND SENTENCEITSELF, SIGNED BY THE COURTSAYS, NO EARLY TERMINATION.THE INTENT ALWAYS, FROM ALL THEPARTIES WAS A 10-YEARSUPERVISORY SENTENCE.AND IT IS A MISCARRIAGE OFJUSTICE IN ANY FORM WHEN A TRIALCOURT, DOES NOT ABIDE BY THETERMS OF THE PARTIES HAVE AGREEDTO, WHEN THEY DISREGARD THE LAWOF CONTRACTS.THE LAW OF AGREEMENTS, AND, ANDASSERT AN AUTHORITY THEY DO NOTHAVE AND THAT IS WHAT HAPPENEDIN THIS CASE AND ANY KIND OFEXTRA JUDICIAL, ULTRABIASEDACTION BY A TRIAL COURT IS ADEPARTURE FROM THE CENTRALREQUIREMENTS OF THE LAW.>> WELL THEN, PLEAS AREAGREEMENTS.>> ABSOLUTELY, YOUR HONOR.>> SO EVERY PLEA CASE WILL NOTBE OPEN TO ASSERT IF IT ISCHANGED BY THE TRIAL JUDGE UNDERTHE STATUTE?>> NO, YOUR HONOR. POST -->> WHY NOT?YOU'RE SAYING THIS IS A CLASS OFCASES, EVERYONE OF THEM.

YOU MAY DISLIKE THIS ONE MOREBECAUSE OF WHATEVER THEUNDERLYING FACTS WERE.THEN THE NEXT ONE THAT COMESALONG, BUT YOU'RE GIVING THATREMEDY IN EVERY PLEA CASE?>> I'M ASKING FOR THIS COURT TOFASHION A NARROW REMEDY THATREFLECTS THE POSTURE IN THISCASE.THAT IT IS NOT JUST ALL PLEANEGOTIATIONS.IT IS POST-SENTENCING.IT IS A CONFLICT IN THE PLEAAGREEMENT LIKE THE CONFLICT INTHIS CASE.>> WELL ARE YOU ARGUING THATTHEY AGREED TO IT.WHICH IS IT?EVERY TIME IT IS LIKE JELL-O.I ASK A QUESTION AND IT CHANGES.YOU WERE ARGUING THAT BECAUSETHE DEFENDANT AGREED TO THIS,THAT IT'S, THAT IT IS CONTRARYTO THE CENTRAL REQUIREMENTS OFTHE LAW THAT NOT BE PULLFULFILLED.THAT IS THE PLEA AGREEMENT.THAT IS WHAT YOU WERE ARGUINGWHEN I ASKED THE QUESTION.>> YES.>> ON THAT ARGUMENT WE WOULDOPEN UP THE POSSIBILITY OF CERTIN EVERY PLEA AGREEMENT THAT THESTATE DOESN'T LIKE.THAT IS VIRTUALLY ALL OF THEMBECAUSE IF THEY WANTED TO DO IT,THEY WOULD AGREE WITH IT.>> NO.YOUR HONOR, WHAT WE'RE TRYING TOGET AT HERE, THE RELIEF THESTATE IS ACCORDED WHEN THERE ISVIOLATION OF THE PLEA AGREEMENTIN THIS SENTENCING CONTEXT.WE'RE NOT TRYING TO, AND THIS ISWHAT PETTIS HAS AS ITS CONCERN.IS THE STATE TRYING TO OBTAINTHAT WHICH IT IS NOT ENTITLEDTO, GREATER RIGHTS THAN IT ISENTITLED TO?

THAT'S NOT WHAT WE'RE TRYING TODO.WHAT WE'RE TRYING TO SEEK FROMTHIS COURT A REMEDY WHEN WEENGAGE IN GOOD FAITHNEGOTIATION, WE DELIVER UP GOODAND SUBSTANTIAL CONSIDERATIONAND THEN THE TERMS OF THEAGREEMENT ARE IGNORED.AND THEY ARE, AND WE ARE BARREDFROM REVIEW OF THAT.>> WHAT YOU'RE SAYING IS, WENEED TO TAKE OUT A PENCIL ANDERASE THE STATUTE UNDER WHICHTHE TRIAL JUDGE OPERATED IN THISCASE?>> NO, YOUR HONOR.>> BECAUSE THAT'S SPECIFICALLY,ISN'T IT, ISN'T THAT STATUTESPECIFICALLY DESIGNED TO BEAPPLIED IN CASES WHERE THERE'S APLEA?I THOUGHT THAT'S WHAT THAT DID?>> IT IS ABSOLUTELY APPLICABLEUNLESS YOU CONTRACT THE AWAY THERIGHT OF -->> A PLEA IS CONTRACT.THAT IS A PLEA.>> THAT'S WHAT I'M SAYING.I'M TRYING TO SAY THAT THEDEFENDANT IN THIS CASE, THEPETITIONER IN THIS COURT, HADTHAT AVAILABILITY AS THEPOTENTIAL.IT'S A POTENTIAL AVAILABILITY.IT IS NO AT GUARANTY.AND IN EXCHANGE FOR NOT HAVING A30-YEAR PRISON SENTENCE, SHETOOK, AS A CONSIDERATION, ANDGAVE AS A CONSIDERATION, THATSHE WOULD NOT SEEK EARLYTERMINATION OF HER SUPERVISORYSENTENCE.WE'RE NOT TRYING TO BIND THE DOCWE'RE NOT TRYING TO BIND THETRIAL COURT.THE TRIAL COURT COULD ACT.SHE COULD NOT ACCEPT THE BENEFITOF THAT ACTION.>> IF WE, IF THE TRIAL COURT

COULD HAVE, AFTER THE SECONDDISTRICT CASE SUA SPONTE DONEWHAT IT DID, BUT WITHOUT MISSLAFAVE SEEKING IT, IS THAT WHATYOU'RE SAYING?>> YES. EXCEPT I -->> I GUESS IT FEELS LIKE FORMOVER SUBSTANCE TO ME.>> SHE COULDN'T HAVE ACCEPTEDTHE BENEFIT OF IT.WE'RE NOT TRYING TO BIND THETRIAL COURT.WE'RE TRYING TO SAY WE COULD, SHEWAS BOUND.IF YOU CONTRACT AWAY THE RIGHT.THE FACT THAT SOMEBODY CAN SAYTHAT TO YOU, YOU CAN'T ACCEPTIT, THAT IS THE DIFFERENCE HERE.WE'RE NOT TRYING TO BIND THETRIAL COURT.WE CAN NOT.I CAN NOT IN GOOD FAITHARGUE TO THIS COURT. WHATI CAN SAY, LAW OF CONTRACTS, THELAW OF AGREEMENTS -->> SEEMS TO ME THAT IS THE ONLYWAY THAT REALLY WORKS IS THATTHE TRIAL COURT CAN NOT ALSOVIOLATE THE PLEA AGREEMENTBECAUSE OTHERWISE, IT DOESN'TMAKE SENSE FOR YOU TO ARGUE, ATLEAST TO ME IT DOESN'T MAKESENSE, THAT THE TRIAL JUDGE CANDO IT BUT SHE CAN'T ACCEPT IT.THE TRIAL JUDGE ENTERS AN ORDERSAYS SHE IS NOT ON PROBATIONANYMORE, THEN SHE IS NOT ONPROBATION ANYMORE.TO ARGUE SHE CAN'T ACCEPT ITDOESN'T RESONATE WITH ME.IT JUST DOESN'T MAKE SENSE.>> LET ME ATTEMPT TO CLARIFY.>> IN THESE CIRCUMSTANCES, YOUCAN NOT, NO ONE CAN DO IT.>> WHAT HAPPENS WHEN THE TRIALCOURTS ACTS IN THIS CASE WE'RENOT TRYING TO BIND THEM.WHAT HAPPENS WHEN THE TRIALCOURT ACTS IN THIS CASE ITRATIFIES THE TERMS AGREEMENT.

THAT IS RADICAL DEPARTURE.NOT EARLY TERMINATION.THE ALLOWING HER TO MAKE THISARGUMENT.FROM THE TIME THE MOTION TOEARLY TERMINATE IS FILED ALL THEWAY TO ACCEPTING THE HEARINGINSTEAD OF DISMISSING IT WHICHIS THE COURT SHOULD HAVE DONE.IT WAS UNAUTHORIZED MOTION ANDTHE COURT SHOULD NOT HAVE HEARDIT.ALLOWING THAT TO OCCUR ISDEPARTURE FROM THE CENTRALREQUIREMENTS OF LAW.THE ORDER IN THIS CASE ISCULMINATION, WHICH GRANTS THEIRMOTION, WHAT THE ORDER ACTUALLYDOES, IT CULMINATES IN THE FINALACT OF DEPARTURE FROM THECENTRAL REQUIREMENTS OF THE LAWBUT THROUGHOUT THE COURTSALLOWING THIS PROCEED, ACCEPTINGTHIS, THAT IS THE DEPARTURE FROMTHE ESSENTIAL REQUIREMENTS OFTHE LAW THAT WE'RE TALKINGABOUT.THAT IS THE WAY IN WHICH THISCOURT RATIFIES A BREACH OF THEAGREEMENT THAT WHILE IT IS NOT ADIRECT PARTY TO, BECAUSE I DON'TBELIEVE THEY CAN BE DIRECT PARTYTO THAT.THE LAW DOES EXIST THAT WE CANNOT HOLD THEM TO FUTURE TRIALCOURTS TO, TO ACT UNDER 948.05.BUT WHAT JUDGE TIMMERMAN DIDWHEN HE SIGNED THAT ORDER, WHENHE RATIFIED THE AGREEMENTBETWEEN THE PARTIES, WAS TO SAYTHAT THOSE PARTIES ARE BOUNDTHEREBY.AND ALLOWING HERE TO GET EARLYTERMINATION TO SEEK EARLYTERMINATION, TO HAVE THISPETITION BEFORE THE COURT,DEPARTED FROM THE ESSENTIALREQUIREMENTS OF THE LAW BECAUSEIT VIOLATED, IT RATIFIED HERPREACH OF THE AGREEMENT.

>> THANK YOU FOR YOUR ARGUMENTS.>> THANK YOU, YOUR HONORS.>> REBUTTAL?I'LL GIVE YOU ADDITIONAL TWOMINUTES.>> THANK YOU, YOUR HONOR.I WANT TO NOTE IN STATE v.RUTHERFORD I KNOW IS NOT BINDINGON THIS, IT IS AN ARIZONA CASE,THEY SAY BY PLEA AGREEMENT YOUCAN STATE A SPECIFIC TERM OFJAIL BUT THEN IT SAYS, ANYFURTHER ATTEMPT BY PROSECUTIONTO CONTROL CONDITIONS OFPROBATION WOULD BE ANINFRINGEMENT ON THE COURT'SJURISDICTION OVER PROBATIONERS.THAT IS ESSENTIALLY WHATHAPPENED HERE.PROBATION IS NOT A SENTENCE.IT'S A WITHHOLD OF IMPOSITION OFSENTENCE SO THE TRIAL COURT CANRETAIN JURISDICTION BECAUSE WECAN'T FORESEE INTO THE FUTUREHOW THE PROBATIONER IS GOING TOPERFORM.TO COMPLETE THIS COMMUNITYCONTROL, OBVIOUSLY THE COURT WASVERY IMPRESSED WITH THIS BECAUSEVERY FEW PEOPLE ARE SUCCESSFUL.AND -->> SO THAT, AT THE TIME OF THEPLEA AGREEMENT, SHOULD SOMETHINGHAVE BEEN SAID ABOUT NOT, THETRIAL JUDGE, SHOULD THE TRIALJUDGE HAVE SAID, WELL, YOU KNOW,I CAN ACCEPT THIS PLEA AGREEMENTBUT, YOU KNOW, I'M DENYINGWHATEVER NUMBER STATUTE IS, IHAVE THE ULTIMATE AUTHORITYABOUT TERMINATION OF PROBATION?IS THAT PROVISION OF THE PLEAAGREEMENT ILLEGAL, UNENFORCEABLE?>> RIGHT.I MEAN, I DON'T THINK IT WASREALLY DISCUSSED.THE TRIAL JUDGE -->> WE KNOW IT WASN'T DISCUSSEDBUT SHOULD IT HAVE BEENDISCUSSED?

>> PROBABLY BUT THE TRIAL COURT,WHEN HE GRANTED THE EARLYTERMINATION OF PROBATION SAYS,I'M NOT A PARTY TO THE PLEAAGREEMENT MUCH THE PLEAAGREEMENT IS BETWEEN THE STATEAND THE DEFENDANT.AND I'M GOING TO FOLLOW THESTATUTE, 948.05 WHICH ALLOWS METO EARLY TERMINATE PROBATION.THERE WAS NO DISCUSSION ABOUTTHE STATUTE.AND PROBABLY HAD THE STATE TOLDTHE JUDGE, WELL, JUDGE, YOU'REENTITLED BY STATUTE TO EARLYTERMINATE PROBATION BUT THISPLEA AGREEMENT IS GOING TO BINDYOUR HAND AND WE'LL NOT ALLOW TOYOU EARLY TERMINATE PROBATION.>> BY STATUTE THE JUDGE WOULD BEENTITLED TO IMPOSE A SENTENCEHOWEVER MANY YEARS IT WOULD BEFOR THESE OFFENSES TO WHICH SHEIS HAS ENTERED A GUILTY PLEA?THE NOTION THAT THE PLEAAGREEMENT CAN'T SOMEHOW RESTRICTWHAT IS OTHERWISE, WITHIN THEAUTHORITY OF THE TRIAL COURT TODO ONCE A GUILTY PLEA HAS BEENENTERED SEEMS TO ME JUST TO BEKIND OF NONSENSICAL.WHAT AM I MISSING?>> THE CASES CLEARLY HOLD THATIT CAN, PLEA AGREEMENT CANCONTROL THE INCARSRATIVE PORTIONOF A SENTENCE.>> I GUESS MY POINT THAT I'MSTRIKING WITH, AND WANT TO GIVEYOU AN OPPORTUNITY TO HELP ME,IS, WHY IS THAT DIFFERENT THANWHAT HAPPENED HERE?WHY IS THAT MATERIALLYDIFFERENT?>> BECAUSE -->> HOW IS IT DIFFERENT?>> INCARCERATION IS A SENTENCEAND IT IS COMPLETE ONCE IT ISIMPOSED.PROBATION IS A WITHHOLD OFIMPOSITION OF SENTENCE AND THE

COURT RETAINS JURISDICTION TOMODIFY OR CHANGE THAT PROBATIONDURING THE ENTIRE TIME OFPROBATION.>> NOW LET ME ASK YOU ON THIS,YOU SAY IT IS NOT, THEIMPOSITION OF PROBATION IS NOT ASENTENCE.WHAT IF THERE IS A CASE OFMANDATORY MINIMUM PRISONSENTENCE AND THE JUDGE, IMPOSESPROBATION INSTEAD.CLEARLY NOT CONSISTENT WITH THESTATUTES, IS THAT APPEALABLE BYTHE STATE?>> YES. IT IS AN ILLEGAL SENTENCE.>> BUT YOU JUST SAID, YOU JUSTSAID PROBATION IS NOT ASENTENCE.HOW CAN IT BE A ILLEGAL SENTENCEIF, IF WHAT'S BEEN IMPOSED ISPROBATION AND YOU SAY THAT ISNOT A SENTENCE?>> BECAUSE THE COURT IS REQUIREDTO IMPOSE JAIL TIME OR PRISONTIME.SO IF THE JUDGE, DOES NOT DOTHAT, THEN HE IS NOT FOLLOWINGTHE LAW.IT IS ILLEGAL SENTENCE.>> THANK YOU FOR YOUR ARGUMENTS.THE COURT WILL BE IN RECESS FOR10 MINUTES.>> ALL RISE.