_________________________

MEMORANDUM OF LAW
_________________________
MATTERModification or recision of probation or community controlEarly termination of
probation/community control
AUTHORHon. William H. Burgess, III
DATEJanuary 17, 2017
_______________
This bench memorandum sets forth the law of early termination of probation and
community control. It addresses judicial authority and discretion, public policy
underlining the law, viability of plea agreement provisions providing for no early
termination of supervision, and the non-appealability of a trial courts decision to
grant or deny early termination of supervision.
_______________
Introduction
Early termination of supervision is a tool used to encourage good behavior and faithful
compliance with the terms of probation or community control. Public policy favors early termination
of probation and community control where the goals of such supervision have been met,1 and
disfavors conditions of probation or community control that would arbitrarily prohibit early
termination.
There are no constitutional rights involved in the termination of probation or community
control. Expression of the public policy favoring early termination of probation and community
control after the goals of supervision are met is found in statutory law and appellate court opinions,
which provide a defendant with the moral and legal entitlement to petition the court for early
termination of his or her supervision.
Judicial Authority and Discretion
Trial courts have unbridled discretion under state law to decide whether or not to terminate
a defendants probation or community control early.2 Pursuant to section 948.05, Fla. Stat., a court
may at any time cause a probationer or offender in community control to appear before it to be
admonished or commended, and, when satisfied that its action will be for the best interests of justice
and the welfare of society, it may discharge the probationer or offender in community control from
1

E.g., the primary goals of probation are to impose on the offender conditions that must be complied with so
that (1) the offender will be rehabilitated and more likely to conform his or her behavior to societal standards in the
future; (2) society will be protected from further criminal conduct by the offender; and (3) the rights of the crime victim
will be protected. Woodson v. State, 864 So. 2d 512 (Fla. 5th DCA 2004).
2

Johnston v. State, So. 3d , 2016 WL 6635271 (Fla. 1st DCA 2016).

Burgess, Early Termination of Probation/Community Control (January 17, 2017)

further supervision.3 In the case of community control, the trial court also may grant rollover
(conversion to probation) prior to the expiration of the term of community control, or outright
termination of community control, if the court is satisfied that the defendant has met all conditions.4
Section 948.05 requires the court to respond to the facts and circumstances that develop during the
term of supervision: If the probationer or offender in community control has fulfilled his or her
obligations and has been a model for supervision, the interests of justice and the wise allocation of
scarce resources may require that early termination of supervision be considered.5
State law further facilitates and promotes such judicial discretion by providing that the
Department of Corrections (DOC) may recommend early termination of probationor discharge or
rollover of community control to the court at any time before the scheduled termination date if the
probationer or offender in community control has performed satisfactorily, has not been found in
violation of any terms or conditions of supervision, and has met all financial sanctions imposed by
the court, including but not limited to, fines, court costs, and restitution.6 Consistent with public
policy, a trial court is not authorized to impose a special condition of supervision that purports to
divest DOC of its statutory authority to recommend early termination of supervision.7
Where a trial court imposes a probationary or community control period with special
conditions and further offers early termination of that probation or community control upon
successful completion of all such conditions, the early termination provision is not self-executing.
If and when the special conditions are completed before the natural expiration of the probationary
or community control sentence, either the defendant or DOC must advise the trial court that all such

948.05, Fla. Stat.

948.05, Fla. Stat.; 948.10(4), Fla. Stat.; 948.101(2), Fla. Stat.

Arriaga v. State, 666 So. 2d 949 (Fla. 4th DCA 1996).

948.04(3), Fla. Stat.; 948.10(4), Fla. Stat.

948.04(3), Fla. Stat.; Hopps v. State, 158 So. 3d 698 (Fla. 2d DCA 2015) (trial court erred by imposing a
special condition of probation that purports to divest DOC of its authority to recommend early termination of probation);
Murphy v. State, 976 So. 2d 1242, 1243 (Fla. 2d DCA 2008) (error for trial court to impose a no early termination of
probation condition); Flynn v. State, 736 So. 2d 160 (Fla. 2d DCA 1999) (trial court erred in imposing a special
condition of probation which attempts to prohibit DOC from exercising its authority to recommend early termination of
probation); Swedish v. State, 724 So. 2d 640 (Fla. 2d DCA 1999) (same); Washington v. State, 686 So. 2d 733 (Fla. 2d
DCA 1997) (striking no early termination consideration condition of probation); Jones v. State, 666 So. 2d 191 (Fla.
2d DCA 1995) (condition that probationary term could not be terminated early impermissibly attempted to divest DOC
of authority to recommend early termination of probation); Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993) (trial
judge is not authorized to divest DOC of its authority to recommend early termination of probation).

Burgess, Early Termination of Probation/Community Control (January 17, 2017)

conditions have been satisfied and request early termination. Once the court has confirmed that all
special conditions have been fulfilled it will then terminate the probation or community control.8
A trial judge may not unilaterally declare at sentencing that no early termination of probation
or community control will ever be allowed, as such defeats the salutory purpose of section 948.05.9
Moreover, a trial judge is not empowered under the law to prevent the circuit court in the future from
exercising its authority to discharge a probationer or offender in community control.10 Such an
arbitrary policy or practice could result in the absurd situation of a rehabilitated defendant being
prohibited from going into court for the opportunity to prove his or her rehabilitation and, if proven,
permit the court to put an end to unnecessary expenditures of time, money, and other resources that
serve no legitimate purpose or which would be better directed towards defendants who have not been
rehabilitated. Such policies and practices do not enhance the image of the state courts in the eyes
of the public and may in fact serve to publicly discredit the courts.
A special term or condition of probation or community control must in all cases meet the
requirements of section 948.039 to be reasonably related to the circumstances of the offense
committed and appropriate for the offender.11 A reasonable term or condition of probation or
community control must (1) satisfy one or more of the states rationales for allowing supervision,
(2) further the goals of supervision, (3) not be impossible or extremely difficult to follow, and (4)
be appropriate in light of the crime committed.12 Supposition alone cannot be used to justify a
restraint on the defendant.13 It is, therefore, inappropriate for a court to continue or extend probation
or community control without a rational basis.
Regardless, there is no statutory or constitutional prohibition precluding a trial court from
requiring a defendant to complete a full term of probation or community control where good reason
exists. While a trial court does not have the statutory authority to impose a requirement of no early
termination of probation or community control that would ban DOC from recommending early
termination or preclude successor judges from considering early termination, the sentencing judge
is free to express his or her intent that the full period of supervision is the price for the avoidance of

Hepburn v. State, 780 So. 2d 326 (Fla. 3d DCA 2001).

Arriaga v. State, 666 So. 2d 949 (Fla. 4th DCA 1996).

10

948.05, Fla. Stat.; Washington v. State, 686 So. 2d 733 (Fla. 2d DCA 1997); Jones v. State, 666 So. 2d 191
(Fla. 2d DCA 1995); Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993) (striking special condition of probation
providing that the defendant could not be considered for early termination).
11

948.039, Fla. Stat.

12

N. Nolan & J. Gobert, The Law of Probation and Parole, 5:09, at 209-10 (1983).

13

See Williams v. State, 182 So. 3d 912 (Fla. 2d DCA 2016).

Burgess, Early Termination of Probation/Community Control (January 17, 2017)

prison. Such precatory terms should not find their way into a judgment and sentence, but a record
of the sentencing courts intent may assist, but will not bind, any successor judge in knowing what
the original sentencing judge had in mind at the time the sentence of probation or community control
was imposed.14
Plea Agreements
Plea agreements cannot diminish the authority and discretion of the trial court as to early
termination of supervision.15 The acceptance by the trial court of a plea agreement does not bind the
court or DOC to any terms of the agreement purporting to limit their discretion or authority in this
regard.16 Stated otherwise, a court is not prohibited from granting, and DOC is not prohibited from
recommending that the court grant, a motion to terminate supervision simply because the defendant
has entered into a plea agreement that was accepted by the court. While it is generally true that
where a trial court actively participates in plea negotiations with the defendant and shapes the the
terms of the defendants ultimate plea and sentence the court is bound to impose a sentence within
the terms of the resulting agreement or allow the defendant to withdraw his or her plea, this
limitation does not extend to termination of supervision. Thus, a trial court maintains its discretion
to grant a motion to terminate probation or community control where the defendant is sentenced
pursuant to a plea agreement,17 even where the plea agreement between the State and the defendant
purports to provide for no early termination of supervision, as addressed in greater detail, infra.
Moreover, plea agreements between the prosecutor and the defendant that would prevent
DOC from recommending, and the trial court from ordering, early termination of supervision likely
violate the constitutional doctrine of separation of powers. The Florida Constitution vests the
legislative power in the state legislature,18 the executive power in the state governor, the judicial

14

See Arriaga v. State, 666 So. 2d 949, 950-51 (Fla. 4th DCA 1996) (Farmer, J., dissenting).

15

The trial court is, in all instances, free to reject a proffered plea agreement that it thinks is unjust, unfair, or
contrary to public policy or the law. It is preferable from the standpoint of judicial efficiency and fairness to the parties,
however, that the trial court address its concerns over terms or conditions of the agreement before imposing sentence,
while being careful not to engage in plea negotiations.
16

Arizona, which has laws similar to Floridas, has resolved this issue against binding no early termination plea
agreements. See State v. Patel, 160 Ariz. 86, 770 P. 2d 390 (Ct. App. Ariz. 1989) (We hold that the state and the
defendant may not bind the trial court to a fixed period of probation. Such an effort is prohibited by statute, court rule,
and public policy. It infringes on the courts jurisdiction and authority over probationers in general.).
17
Enea v. State, 171 So. 3d 219 (Fla. 5th DCA 2015). Note that the four-page plea agreement in Enea did not
contain any express provisions prohibiting Enea from seeking an early termination of probation, and the courts Order
of Probation expressly stated that the court may at any time discharge Enea from further supervision.
18

Fla. Const. Art. III, 1.

Burgess, Early Termination of Probation/Community Control (January 17, 2017)

power in the state judiciary,19 and the circuit-level prosecuting power in the circuit state attorneys.20
The executive branch has the constitutional power to enforce the general law; the state attorney (or
statewide prosecutor) is vested with both the power to charge an individual accused of criminal
conduct and the discretion to proceed to trial once a criminal action has been filed with the court.
The judiciary has the integral function of resolving criminal actions. When the jurisdiction of a court
has been properly invoked by the filing of a criminal charge, the final disposition of that charge
becomes a judicial responsibility. Once the prosecutor has pursued and obtained a guilty verdict or
a plea of guilty or nolo contendere, the executive role in the resolution of the criminal action is
limited constitutionally. The judiciary alone has the power to resolve criminal matters, and while
the legislature may prescribe a range of punishment it may not empower the prosecutor to veto a
courts resolution of a criminal matter within that range.21 Attempts to qualify judicial discretion
by conditioning early termination on the prosecutors approval fare no better, because a prosecutorial
concurrence requirement is, in effect, an executive veto power that unreasonably impedes the
judiciarys power to resolve criminal cases. The prosecutor does not supervise probation or
community control: Prosecutorial supervision of defendants would be an invasion of the judicial
function and the function of DOC, and would inevitably be disruptive of all three entities.
Sentencing is, in the last analysis, a judicial function and the Florida legislature has not delegated
final sentencing authority to prosecutors.
Plea agreements are regarded as contracts conferring all of the attendant rights and
obligations governed by ordinary principles of contract law, albeit unique contracts in which special
due process concerns and adequacy of procedural safeguards are prevalent. The freedom of
prosecutors and defendants to enter into plea agreements notwithstanding, the application of contract
law principles in support of plea agreements containing no early termination terms or conditions
is problematic for a variety of reasons involving public policy, severability, waiver, substantial
compliance, and other factors.
Unenforceability Based on Public Policy. A term or condition of an agreement is
unenforceable on grounds of public policy if legislation provides that it is unenforceable or the
interest in its enforcement is clearly outweighed by a public policy against the enforcement of such
term or condition. That is, the objection which would avoid this term or condition comes from the
public at large, who demand that the term or condition not be enforced, and courts have no right to
ignore or set aside public policy established by the legislature or the people. In weighing the interest
in the enforcement of a term, account is taken of the parties justified expectations, any forfeiture that
would result if enforcement were denied, and any special public interest in enforcement of the
particular term. In weighing a public policy against the enforcement of a term, account is taken of

19

Fla. Const. Art. V, 1.

20

Fla. Const. Art. V, 17.

21

See State v. Ramsey, 171 Ariz. 409, 831 P. 2d 408 (Ct. App. Ariz. 1992).

Burgess, Early Termination of Probation/Community Control (January 17, 2017)

the strength of that policy as manifested by legislation or judicial decisions, the likelihood that a
refusal to enforce the term will further that policy, the seriousness of any misconduct involved and
to the extent it was deliberate, and the directness of the connection between that misconduct and the
term.22 Under this analysis, the prosecutor does not have a justified expectation in the enforcement
of a term or condition that is contrary to public policy and therefore would not forfeit any lawful
interest in the outcome of the case if such a term is not enforced. In addition, a strong public policy
against the enforcement of such a term is manifested in statutory law and appellate court opinions,
and the refusal of a court to enforce such a term or condition furthers that policy. While it generally
is of concern that a defendant might enter into a plea agreement within which the defendant agrees
not to seek early termination of supervision, and subsequently deliberately violate that term by
seeking early termination, the vastly unequal bargaining positions of the parties in favor of the State,
and the strength of the public policy favoring early termination after the completion of all other
conditions, may preclude such a violation from justifying enforcement of such a term or condition.
Severance. Plea agreements typically do not have severability clauses, but a condition or
term of no early termination may be severable on the basis of unenforceability due to public policy.
However, when a portion of a contract is void as against public policy, the remainder of that contract
may still be enforceable to the extent it is severable from, and not dependent in its enforcement upon,
the void portion.23 Such a condition or term also may be severable where, by the terms, nature, and
purpose of the plea agreement, it is one of two or more parts in respect to matters being contemplated
or embraced by the overall agreement that are not necessarily dependent on each other nor intended
by the parties that they should be, as opposed to contemplating or intending that each and all of its
parts, and the consideration, are common to each other and interdependent.24 A typical plea
agreement will address several matters, such as: the number, type, and level of offense(s); whether
a charge or charges will be amended or nolle prossed; the type of plea; whether adjudication will be
imposed or withheld; conditions precedent (e.g., truthful testimony against a co-defendant); the
amount and type of fines, costs, and fees; and the duration and type of confinement; the duration of
probation or community control and specific terms and conditions of supervision. Normally, the
primary focus is on the conviction of the defendant, to which all other matters are collateral, and the
terms and conditions of supervision are not interdependent with one another. As a general rule,
contractual provisions are severable, where the illegal or otherwise unenforceable portion of the
contract does not go to its essence and, with the unenforceable portion eliminated, there remains
valid legal obligations.25 As such, a term or condition of no early termination of supervision,
22

Restatement (Second) of Contracts 178 When a Term Is Unenforceable on Grounds of Public Policy (1981);
see Local No. 234 of United Assn of Journeymen and Apprentices v. Henley & Beckwith, 66 So. 2d 818 (Fla. 1953).
23

17A C.J.S. Contracts 380 (2016).

24

17 C.J.S. Contracts 378 Partial Illegality (2016).

25

Local No. 234 of United Assn of Journeymen and Apprentices v. Henley & Beckwith, 66 So. 2d 818 (Fla.
1953); Fonte v. AT&T Wireless Services, 903 So. 2d 1019, 1024 (Fla. 4th DCA 2005).

Burgess, Early Termination of Probation/Community Control (January 17, 2017)

standing alone, may be severable from the rest of the agreement without doing violence to the overall
agreement.
Waiver. It also can be problematic that no early termination plea agreements require, of
necessity, a waiver of the defendants right to seek early termination of supervision. Although
anyone may waive the advantage of a law intended solely for his or her benefit, a law established for
a public reason cannot be contravened by a private agreement.26 Among the considerations in
evaluating such waiver agreements is relative bargaining power of the parties to the agreement and,
generally, absent some affirmative indication that the plea agreement was entered into unknowingly
or involuntarily, a waiver agreement can be valid and enforceable.27 Plea agreements that contain
waivers of an individuals lawful rights can, therefore, be permissible but, [t]he right of waiver is
subject to the control of public policy, which cannot be set aside or contravened by any arrangement
or agreement of the parties, however expressed.28 As such, public policy favoring early termination
may render a defendants unqualified waiver of the statutory right to petition the court for early
termination of supervision a nullity.
Recision. Violation of a no early termination provision of a plea agreement, either by the
defendant requesting early termination, DOC recommending it, or the trial court granting it, does not
automatically entitle the State to recision of the agreement. When the State believes that the
defendant has breached the terms of a plea agreement, due process prevents the State from nullifying
the agreement unilaterally and requires the State to comply with Florida Rule of Criminal Procedure
3.170. Pursuant to that rule, whenever a plea agreement requires the defendant to comply with some
specific terms, those terms have to be expressly made part of the plea entered into in open court.29
The rule allows the State to move to vacate a plea and sentence within 60 days of the defendants
noncompliance with specific terms of a plea agreement.30 The rule provides further that no plea or
sentence shall be vacated unless the court finds that there has been substantial noncompliance with
the express plea agreement.31

26

See Ostafin v. State, 564 N.W. 2d 616 (1997) (defendant cannot as part of plea agreement waive good time
credits, the purpose of which is to improve prison behavior and thereby improve overall prisoner morale and well being).
27

See U.S. v. Mezzanatto, 513 U.S. 196, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995) (agreement to waive
exclusionary provisions of plea-statement rules was enforceable absent any showing that defendant entered agreement
unknowingly or involuntarily).
28

Charles F. Williams and David S. Garland, American and English Encyclopdia of Law, Vol. XXVIII
(Northport, Long Island, New York: Edward Thompson Company, Law Publications 1895), p. 533.
29

Fla. R. Crim. P. 3.170(g)(1).

30

Fla. R. Crim. P. 3.170(g)(2)(A).

31

Fla. R. Crim. P. 3.170(g)(2)(C).

Burgess, Early Termination of Probation/Community Control (January 17, 2017)

Substantial Compliance. While, at one time, the common law required strict and literal
compliance with the terms of a contract, over time this was relaxed under the influence of courts of
equity, so that today only substantial compliance with a contracts terms is generally required.32 As
such, the correct standard for determining whether a defendant has breached his or plea agreement
to the degree necessary to warrant setting the agreement aside is one of substantial compliance.33
Substantial compliance is, by definition, less than actual compliance. The test of substantial
compliance is whether, under the totality of the circumstances, the purpose of the plea agreement was
met and the non-breaching party received substantially the benefit he or she expected. A breach is
thus not material or substantial enough to warrant recision unless the non-breaching party is deprived
of the benefit of the bargain.34 The difference between the expected benefit to the State from the
defendant serving a full term of supervision, versus the actual benefit to the State from the defendant
fulfilling all other terms and conditions and being released from supervision at a point prior to the
scheduled end of supervision, is insignificant, speculative, unquantifiable, and insufficient to warrant
recision under Rule 3.170 in all but the most extraordinary cases.
Appeal
The authority conferred upon the trial court to terminate probation or community control is
a matter of grace35 and the courts decision to grant or deny a motion for early termination is not
appealable.36 The State, in particular, has no right under section 924.07(1)37 or its procedural
counterpart Rule 9.140(c)38 to appeal an order granting early termination of probation, regardless of
what the parties had agreed to in the initial plea, thus rendering no early termination agreements
utterly unenforceable as a matter of law.39

32

15 Williston on Contracts 44:52 (4th ed.) (citations omitted).

33

See McCoy v. State, 599 So. 2d 645 (Fla. 1992); U.S. v. Bielak, 660 F. Supp. 818 (N.D. Ind. 1987).

34

See U.S. v. Castaneda, 162 F. 3d 832, 836-38 (5th Cir. 1998) (material breach of nonprosecution agreement).

35

State v. M.R.T., 848 So. 2d 467 (Fla. 5th DCA 2003).

36

Johnston v. State, So. 3d , 2016 WL 6635271 (Fla. 1st DCA 2016); Burgos v. State, 765 So. 2d 967 (Fla.
4th DCA 2000); State v. Folkes, 190 So. 3d 118 (Fla. 4th DCA 2015) (modification of community control conditions
did not constitute a sentence and therefore State had no right of appeal); Thompson v. State, 840 So. 2d 352 (Fla. 5th
DCA 2003); Ziegler v. State, 380 So. 2d 564 (Fla. 3d DCA 1980) (since the authority conferred upon the court by section
948.05 is entirely a matter of grace, an order denying that relief is non-appealable).
37

924.07(1), Fla. Stat.; McCoy v. State, 599 So. 2d 645 (Fla. 1992).

38

Fla. R. App. P. 9.140(c).

39

LaFave v. State, 149 So. 3d 662 (Fla. 2014) (an order granting a motion to terminate probation is nonappealable).

Burgess, Early Termination of Probation/Community Control (January 17, 2017)

Conclusion
Trial courts should not impose a term or condition of no early termination of supervision,
even in extraordinary cases, nor should the courts have policies or practices prohibiting early
termination across the board. The courts also should not consider no early termination terms or
conditions in plea agreements entered into between the State and defendants to be binding on the
courts. While the courts should be alert to possible situations in which early termination of
supervision could deprive the State of the benefit of the bargain in plea agreements, such remote
possibilities should not cause the courts to disregard public policy and the relevant facts of each case
at the time early termination is considered.