Opinion
Case No. 95-3527
Opinion filed March 5, 1997.
An appeal from the Circuit Court for Dade County, Maxine Cohen Lando, Judge.
LOWER TRIBUNAL NO. 93-35824
Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Richard L Polin, Assistant Attorney General, and Laura Wise and Donna Bostic, Certified Legal Interns, for appellee.
Before NESBITT, GODERICH, and SORONDO, JJ.
Roberto Angel Espinosa pled guilty to the charged offense of burglary of an unoccupied dwelling in exchange for a fifteen year sentence. The sentence was conditioned on Espinosa's compliance with an agreement he executed with the state. In the event of non-compliance, the agreement provided that Espinosa would, at the option of the state, be subject to a thirty year sentence. Later, the defendant plainly lied during giving of testimony and at the state's urging, he was sentenced by the trial court to a thirty year sentence. Espinosa timely appeals the sentence which followed the trial court's finding of noncompliance.
When entering into a plea agreement, the state must make sure that the specific terms of the agreement are made a part of the plea agreement and the record. McCoy v. State, 599 So.2d 645, 649 (Fla. 1992). In the instant case, the plea agreement and attached proffer provided that Espinosa would testify truthfully and specifically enumerated two criminal episodes involving Espinosa and his cohort Perez. However Espinosa was found in violation of his plea agreement for failing to testify consistently with a statement he had given to law enforcement officers seven months prior to the plea, relating to a crime not enumerated in the plea and proffer, occurring at a different time, at a different location, and with a different weapon from those enumerated offenses. Because the plea did not specifically require that Espinosa testify in accordance with this previous statement, we conclude that he could not be found to have violated his plea agreement on that basis. See Spencer v. State, 623 So.2d 1211 (Fla. 4th DCA 1993).
The deficiency in this agreement is plainly encapsulated within the maxim, expressio unius est exclusio alterius. "If one subject is specifically named [in a contract], or if several subjects of a large class are specifically enumerated, and there are no general words to show that other subjects of that class are included, it may reasonably be inferred that the subjects not specifically named were intended to be excluded." 3 Corbin on Contracts § 552 (1960).
For the forgoing reasons, the sentence is vacated and the case remanded for resentencing of the defendant to his original fifteen-year sentence.
I agree with the majority that the sentence of the trial court must be reversed. The Supreme Court's decision in McCoy v. State, 599 So.2d 645 (Fla. 1992) compels this result. I write separately to point out that the enhanced sentence in that case was reversed because the plea agreement was held to be vague in that it did not clearly require the defendant to testify at the trial of her drug supplier in accordance with statements she had previously made to the police. The Court stated:
[W]hen entering into a plea agreement, the State must make sure that the specific terms of the agreement are made part of the plea agreement and the record. . . . It would have been adequate if it had been stated, as part of the plea agreement, that McCoy would testify truthfully in any criminal action against her supplier in accordance with identified statements that she had previously given to law enforcement officials.
The holding was clearly predicated on the vagueness of the agreement. The same problem dooms the enhanced sentence here.
I am reluctant to decide this case, or to suggest that it has been decided, on the basis of a doctrine of contract law. The issue to be decided in cases such as this is whether the plea agreement, in conjunction with the plea colloquy, was sufficiently clear to apprise the defendant of his or her responsibilities thereunder. Even if a written plea agreement is silent on the critical issue of what "truthful testimony" the state expects in return for its recommendation of leniency, if the court defines the nature of such testimony by explaining to the defendant during the plea colloquy that he is expected to testify consistently with his previous statement to the police, the plea agreement would nevertheless be enforceable under McCoy even though the explanation of the state's expectations was not included in the written agreement. It is unlikely that traditional concepts of contract law would allow such "parol" modification of a written contract.
Although Professor Corbin apparently discusses the doctrine of expressio unius est exclusio alterius as one of contract law, it is more commonly applied in the area of statutory construction. Because the majority opinion mentions the concept within the framework of contract law, however, this concurrence addresses it in the same context.