Effect of Plea Modifications

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This page provides links to Case Law regarding sealing and expungements and the basis for plea modification, withdrawing a plea, or modifying sentence to obtain relief.

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The cases are list below from the most recent to the earliest. A brief description follows. Citations were removed. Please refer to actual case for complete understanding.

Qualifying to Seal or Expunge Based on Plea Modification

The disposition of a case – what the court did after a plea or finding of guilt – can affect whether a person qualifies to have their record sealed or expunged. It is important to know if such a modification will help or hurt your cause.

Types of Plea Modification

There are many ways to modify a plea. These can occur before or after a plea has been entered. Below are listed some of these methods of modification along with case law.

Nolle Prosequi

J.A.H. v. State, 198 So.3d 884 (Fla. 4th DCA 2016): J.A.H. appeals the trial court’s order denying his petition to seal his criminal record related to two counts he was charged with, one of which he pled to and the other for which the State entered a nolle prosequi. As the State concedes, the trial court erred in failing to hold a hearing and failing to enumerate reasons for denying the petition. J.A.H.’s alternative argument on appeal is that the trial court erred in considering the State’s argument . . . that section 943.059, Florida Statutes (2016), bars J.A.H. from having his record sealed. Although J.A.H. was initially charged with trafficking in oxycodone, under section 893.135, that count was nolle prossed by the State, and therefore does not fit the statutory bar since J.A.H. was not “found guilty of or pled guilty or nolo contendere to the offense.” We agree with J.A.H. that the State’s argument was an inaccurate application of the statute.

Post Conviction Relief

State v. Cousins, 62 So.3d 677 (Fla. 5th DCA 2011): The trial court lacked subject matter jurisdiction to modify Cousins’ completed sentence to reflect a withhold of adjudication. As a general matter, a trial court loses jurisdiction to modify or change a sentence 60 days after the sentence is imposed or becomes final. Certainly, a trial court lacks jurisdiction to modify a legal sentence several years after it has been completed by the defendant. The State’s petition for a writ of certiorari is granted and the order of the trial court modifying Cousins’ judgment and sentence is quashed.

Blackmon v. State, 7 So.3d 650 (Fla. 3d DCA 2009): Ms. Blackman wrote to the trial judge, requesting that the judgment in her case be vacated. The trial court treated the letter as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and denied it as untimely. As Ms. Blackman claims actual innocence, her only avenue of relief from the conviction would be by application to the Pardon Board. She wishes to have her criminal record sealed. In order to pursue that relief, Ms. Blackman must submit a petition to seal or expunge on the appropriate forms contained in Florida Rule of Criminal Procedure 3.989, and follow the requirements of Rule 3.692. The requirements include obtaining a certificate of eligibility from the Florida Department of Law Enforcement. It is impossible to determine from Ms. Blackman’s letter whether she is, or is not, eligible for sealing or expunction. No useful purpose would be served by a remand for the trial court to consider this issue, because the claim has not been properly pled.

Pretrial Diversion/Intervention

State v. Dempsey, 916 So.2d 856 (Fla. 2d DCA 2005): Dempsey and the State entered into a PTI agreement under which Dempsey agreed to pay restitution to the victim and participate in the PTI program for twelve months. In exchange, the State agreed that upon full payment of restitution and her successful completion of twelve months in the PTI program, it would dismiss the charges. The written agreement also stated that the case and charges against her would not be subject to expunction pursuant to section 943.0585, Florida Statutes (1992), but could be sealed pursuant to section 943.059. The trial court thereafter ratified the agreement. Dempsey moved to set aside the PTI agreement, vacate the dismissal, and reinstate the charges against her. Her motion alleged that following the dismissal of the charges against her, she had pursued and completed a course of education to become certified as a school teacher, but she had been rejected for employment by several school districts. In particular, the Pinellas County School Board considered her participation in the PTI program an admission of guilt, thereby making her ineligible for employment within that district. She claimed she misunderstood her contract with the State, there was no meeting of the minds, and the dismissal of her charges was ambiguous and should be deemed void because third parties, particularly the Pinellas County School Board, do not recognize the dismissal. Absent a legal basis to do so, the trial court erred when it set aside the contract that Dempsey and the State entered into in 1998 and reinstated the criminal proceedings against her. In essence, Ms. Dempsey has tried to set aside an agreement that was extremely advantageous to her in 1998 but less so now in her present circumstances, based on the actions of a non-party to that agreement.

Motion to Withdraw Plea

State v. Phillip, 20 Fla. L. Weekly Supp. 783a (17th Jud. Cir., May 20, 2013): In the instant case, the trial court did not err in granting the motion to vacate involuntary plea. The trial court found that the motion was not time barred [past 30-days but before 2-years] because Phillip did not know, and could not have discovered with the exercise of due diligence, that he was being adjudicated guilty. In fact, the original disposition issued by the trial court fails to indicate that Phillip was being adjudicated guilty. [T]he portion of the disposition form which contains a place for “Adj. Guilty” to be checked . . . remained unchecked. [T]he trial court found that the first time Phillip realized he was adjudicated guilty was when he was advised by FDLE that his request to expunge was denied. The State has not demonstrated that this factual finding was erroneous. Because his motion to vacate was filed within two years of discovering those facts, the trial court did not err in granting his motion under the very limited and unique facts of this case.

State v. Gebhard, 18 Fla. L. Weekly Supp. 705a (18th Jud. Cir., February 18, 2011): The State appeals the trial court’s order allowing Appellee . . . to withdraw her plea to a misdemeanor charge. In 1996, Appellee entered a plea to one count of worthless check; adjudication was withheld. In 2010, she filed a Motion to Seal or Expunge or in the Alternative to Reconsider Judgment. [T]he trial court held a hearing on this motion. [The court] orally announced that it would conform Appellee’s pleadings to the oral arguments and it granted the oral request made by counsel to withdraw Appellee’s plea. [C]ourts can only act within the limits set by law. There are a limited number of avenues available to a defendant seeking to set aside a criminal conviction[.] Rule 3.170(1), Fla R Crim P, allows a motion to withdraw a plea after judgment is entered . . . within 30 days of sentencing. Another . . . means of relief [is] a post-conviction motion filed under Rule 3.850, Fla R Crim P. This rule allows the court to consider a motion to vacate judgment, including a request to withdraw plea, up to two years after the judgment becomes final. Appellee’s motion in this case is untimely by many years and would be cognizable by the trial court only if she met the pleading requirements of Rule 3.850(b) with regard to newly discovered evidence and due diligence. The issue of whether Appellee has legally sufficient grounds for relief under Rule 3.850(b), however, is not actually before the Court because Appellee never filed such a motion. . . . In the absence of this motion, the trial court had no jurisdiction to vacate the judgment.

Lang v. State, 15 Fla. L. Weekly Supp. 688b (6th Jud. Cir., Apr 18, 2008):[Defendant] appeal[ed] from an order denying his motion to withdraw his plea[.] The defendant entered a no contest plea to a stalking charge. He claims that he would never have entered the plea if he had known, contrary to the assertions of his trial counsel, that he was ineligible to have his record expunged. After an evidentiary hearing, the trial court denied the defendant’s motion. In Phillips v. State, 960 So.2d 29 (Fla. 4th DCA 2007), the appellate court held that a claim that trial counsel erroneously told the defendant that his guilty pleas would never be used against him and would be expunged after he completed probation was insufficient to allow him to withdraw his plea, even though he claimed he would not have entered the plea if he knew he could not expunge his record. Inasmuch as courts within the Second District Court of Appeal must obey controlling precedent from other districts, see e.g. Chapman v. State, 423 So.2d 578 (Fla. 2d DCA 1982), this Court must similarly find that the defendant’s claim is not grounds for withdrawing his plea. The trial court properly denied the defendant’s motion to withdraw his plea.

Baldwin v. State, 10 F.L.W. Supp 758a (9th Jud. Cir., July 14, 2003): Defendant entered a plea of nolo contendere to the charge of battery (domestic violence). On February 22, 2002, Defendant filed a Motion to Withdraw Plea of No Contest, and a hearing was held. The public defender stated to the court that Defendant entered his plea specifically relying on her representation to him that he would be able to have this record expunged. After Defendant entered his plea, the public defender researched expungement and discovered that charges related to domestic violence cannot be expunged. She then contacted Defendant and informed him that she had given him incorrect information. The trial court concluded that there was an insufficient legal basis to withdraw the plea, and denied the motion. The facts at the hearing were undisputed. Defendant entered into this plea in reliance on counsel’s statement that he would have the opportunity to have this offense expunged from his record. Counsel was wrong. Thus, Defendant’s plea was rendered involuntary by counsel’s misadvice, and Defendant should have been allowed to withdraw his plea.

An Ounce of Prevention is Worth a Pound of Cure

The best place to try and correct an act, such as a misunderstood plea, is before it happens. The judicial system has plenty of built in methods to correct errors, especially in the criminal justice system. However, there is a legitimate need for finality and the courts recognize this.

Plea agreements should be thoroughly explained before you enter into it. Always have your attorney explain all aspects of the plea agreements and how this will affect your ability to seal or expunge your record.

The effect of plea agreements is why you need to make sure you are making the right decision in court every single time. It goes without saying that the only way to do this is by hiring competent legal representation to handle all your legal matters.


Do you have questions, would you like to suggest additional case law, or are you seeking to have your record sealed or expunged? Please feel free to contact us.

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