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McFord v. State7/14/2004
consent and in his presence, revealed the existence of "numerous baggies, crack pipes, cocaine, marijuana . . . a cell phone, battery and electronic scale." The Defendant was re-arrested, and the State moved to vacate the plea pursuant to Fla. R. Crim. P. 3.170(g).
At the hearing on the motion, the Defendant admitted to the possession of cocaine, a violation of Florida law. Nevertheless, the Defendant urged an antithetical explanation, i.e., that his possession was "out of necessity" to mask his undercover work. Yet, not once prior to coming into possession of the illegal substances, or at any time thereafter, did Defendant tell his supervisor that he had these items, despite daily required communications between them. The Defendant likewise ignored a provision of the plea agreement that required him to provide for "review or duplication any and all . . . tangible items which are in any way related to any criminal acts." The trial court held that the Defendant violated the terms of his agreement and sentenced him to thirty years with a fifteen-year minimum mandatory sentence, with credit for time served pursuant to the agreement.
McFord contends on appeal that a proper interpretation of the plea agreement requires that the State either introduce evidence of a conviction or, at a minimum, prove that he committed a crime beyond a reasonable doubt at the 3.170(g) non-compliance hearing before he can be held to have violated the agreement. In support of this argument, he urges that the language of the agreement which states that " he commission by the Defendant of any crime . . . shall be a violation of agreement," is ambiguous because it does not expressly disclaim the requirement of a conviction. He then urges that this purported ambiguity must be construed against the State as the drafter of the agreement. We reject this argument. The agreement expressly states that it is the commission and not the conviction of a crime that would constitute a violation of the agreement. But if there was any doubt about the interpretation and meaning of the plea agreement, the trial judge made the terms of the agreement crystal clear during the plea colloquy. Specific clarifications of a plea agreement made during the course of a plea colloquy become part of the agreement for purposes of its enforcement. Metellus v. State, 817 So. 2d 1009 (Fla. 5th DCA 2002); Deramus v. State, 652 So. 2d 1245 (Fla. 5th DCA 1995). Defendants who seek to avail themselves of the salutary upside of a substantial plea agreement do not have the right to make unilateral modifications to the agreement. See Frazier v. State, 679 So. 2d 944 (Fla. 3d DCA 1997) (a party who reaps the benefits of the agreement must be held to its detriments). We decline McFord's invitation to do so here by engrafting an after-the-fact "necessity" exception into the plea agreement. As the trial court told the Defendant at the plea colloquy, "the keys to the prison . . . in your hands. It=s up to you what you do out there." His obligation was clear. Sadly, he squandered the break of a lifetime.
Affirmed.
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