          Supreme Court of Florida
                                    ____________

                                   No. SC12-2232
                                   ____________

                                 DEBRA LAFAVE,
                                    Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                  [October 16, 2014]

QUINCE, J.

      This case is before the Court for review of the decision of the Second

District Court of Appeal in State v. LaFave, 113 So. 3d 31 (Fla. 2d DCA 2012). In

its decision, the district court ruled upon the following question and certified it to

be of great public importance:

      IN THE ABSENCE OF A STATUTORY RIGHT TO APPEAL,
      MAY THE STATE SEEK CERTIORARI REVIEW OF AN ORDER
      TERMINATING PROBATION WHERE IT CAN SHOW THAT
      THE CIRCUIT COURT DEPARTED FROM THE ESSENTIAL
      REQUIREMENTS OF THE LAW BY VIOLATING THE PLEA
      AGREEMENT BETWEEN THE STATE AND THE DEFENDANT
      WHICH CALLED FOR NO EARLY TERMINATION?

Id. at 37. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
      For the reasons stated below, we answer the certified question in the

negative and quash the decision of the Second District Court of Appeal which

reinstated LaFave’s probation pursuant to the terms and conditions of her

negotiated plea agreement and original sentence. Because we determine that the

Second District lacked jurisdiction to review the circuit court’s order terminating

LaFave’s probation, we do not reach the merits of its decision.

                   FACTS AND PROCEDURAL HISTORY

      As summarized by the district court below, the facts in this case are:

            Debra LaFave, a school teacher, was charged in Hillsborough
      County with two counts of lewd or lascivious battery, see
      § 800.04(4)(a), Fla. Stat. (2003), for committing sexual battery on a
      fourteen-year-old middle school boy. She was also charged in Marion
      County for committing additional incidents of sexual battery against
      the same child in that county.

             Her two Hillsborough County charges, both second-degree
      felonies, were each punishable by up to fifteen years in prison. See
      § 775.082(3)(c), Fla. Stat. (2003). However, under the Criminal
      Punishment Code, her lowest permissible sentence was 15.1875 years
      in prison. See §§ 921.0024(2), .00265(1), Fla. Stat. (2003).

             Pursuant to a negotiated plea agreement with the State, LaFave
      pleaded guilty in 2005 to the Hillsborough County charges in
      exchange for a nonprison sentence of supervision, which was a
      downward departure from the prison requirements of the Criminal
      Punishment Code. The circuit court accepted her plea, according to
      the agreement, and sentenced her to three years of community control
      to be followed by seven years of sex offender probation. As an
      express condition of her plea agreement, LaFave agreed to serve her
      entire sentence and to not seek early termination of probation. This
      agreement was ratified and confirmed by the circuit court by virtue of
      its acceptance of her negotiated plea. Subsequent to her plea in

                                        -2-
      Hillsborough County, the State Attorney’s Office in Marion County
      dropped the Marion County charges against her, deeming the matter
      resolved by the Hillsborough County disposition. [1]

             Six years into her ten-year nonprison sentence, LaFave
      unabashedly sought early termination of her probation in 2011 in
      direct violation of her plea agreement. She asked the circuit court to
      terminate her sex offender probation four years early. On October 3,
      2011, over objections from both the state attorney and the Department
      of Corrections [(DOC)], the circuit court granted her motion and
      terminated her probation as requested.

Id. at 33-34.

                                   LaFave’s Motion

      At the hearing on LaFave’s Motion to Terminate Probation, LaFave argued

that under section 948.05, Florida Statutes (2011), the trial court has inherent

jurisdiction to hear the motion and to reward defendants based on their successful

completion, or substantial completion, of such strict probationary and community

control terms, regardless of what the parties may have agreed to. The State argued

that the trial court did not have jurisdiction to hear the motion, in light of the “no

early termination” provision. The State further argued that if the court in fact had

jurisdiction, that the motion should be dismissed on the merits, as the DOC and the

       1. At the hearing on LaFave’s motion, the State informed the court that the
Marion County State Attorney’s Office agreed to be bound by the plea agreement
in Hillsborough County. However, the judge assigned to the case in that county
rejected the plea agreement. Therefore, the Marion County State Attorney’s Office
had to decide whether to quickly resolve the case, as requested by the victim’s
family, and proceed to trial, or drop the charges against LaFave, thereby forgoing
the right to supervise any further proceeding in the case. The Marion County State
Attorney’s Office chose to drop the charges against LaFave.

                                          -3-
victim strongly opposed LaFave’s release from probation. The trial court granted

LaFave’s motion. The State filed a petition for common law writ of certiorari with

the Second District Court of Appeal, which the Second District granted.

                   The Second District’s Discussion of Jurisdiction

       The Second District acknowledged that the State had no right of appeal in

this case, as section 924.07(1), Florida Statutes (2011), and its procedural

counterpart, Florida Rule of Appellate Procedure 9.140(c), set forth the limited

circumstances in which the State has a right to appeal and neither the statute nor

the rule specifically provides the State with a right to appeal a circuit court’s order

granting early termination of probation. LaFave, 113 So. 3d at 34. The Second

District observed that the trial court’s order terminating LaFave’s probation “is not

a type of interlocutory or pretrial order that has been held to be reviewable by

certiorari . . . . [b]ut . . . does not fall into the category of ‘final orders of dismissal’

that are not subject to certiorari review.” Id. at 36-37.

       The Second District decided that the trial court’s order “is a rare,

postsentencing order which . . . constitutes a violation of the plea agreement . . .

[is] extremely prejudicial to the State, and the ability of the State to seek certiorari

review of such an order, where there is no other avenue for relief, is crucial ‘to the

fair administration of criminal justice’ and necessary ‘to correct an erroneous and

highly prejudicial ruling.’ ” Id. at 37 (citing State v. Pettis, 520 So. 2d 250, 253


                                            -4-
(Fla. 1988)). The district court concluded its discussion of jurisdiction by stating,

“we rely on the rationale of Harris,2 Pettis, and Wilson3 and hold that in this rare

instance, the State may seek certiorari review of the circuit court order terminating

LaFave’s probation[,]” and certified the question presented to this Court. Id. at 37

(footnote omitted).

                                          ANALYSIS

                               I.    Standard of Review

      The district court certified a question of great public importance to this

Court. Because this is a question of law arising from undisputed facts, this Court

reviews the district court’s decision de novo. Aills v. Boemi, 29 So. 3d 1105, 1108

(Fla. 2010).

                                    II.    Jurisdiction

                  Jurisdiction of Florida District Courts of Appeal

      The Florida Constitution provides district courts with the authority to hear

appeals from trial court final orders and to review interlocutory orders of trial

courts as provided by the procedural rules. Art. V, § 4(b)(1), Fla. Const. The

constitution also allows district courts to issue writs of certiorari “necessary to the

complete exercise of its jurisdiction.” Art. V, § 4(b)(3), Fla. Const.


      2. State v. Harris, 136 So. 2d 633 (Fla. 1962).

      3. State v. Wilson, 483 So. 2d 23 (Fla. 2d DCA 1985).

                                            -5-
      Florida Rule of Appellate Procedure 9.030 (b)(1)-(3) more fully outlines the

appellate and certiorari jurisdiction of our district courts of appeal and provides:

      (b) Jurisdiction of District Courts of Appeal.

                   (1) Appeal Jurisdiction. District courts of appeal shall
             review, by appeal

                           (A) final orders of trial courts, not directly
                    reviewable by the supreme court or a circuit court,
                    including county court final orders declaring invalid a
                    state statute or provision of the state constitution;

                          (B) non-final orders of circuit courts as prescribed
                    by rule 9.130;

                           (C) administrative action if provided by general
                    law.

                    (2) Certiorari Jurisdiction. The certiorari jurisdiction of
             district courts of appeal may be sought to review

                           (A) non-final orders of lower tribunals other than
                    as prescribed by rule 9.130;

                          (B) final orders of circuit courts acting in their
                    review capacity.

                    (3) Original Jurisdiction. District courts of appeal may
             issue writs of mandamus, prohibition, quo warranto, and
             common law certiorari, and all writs necessary to the complete
             exercise of the courts’ jurisdiction; or any judge thereof may
             issue writs of habeas corpus returnable before the court or any
             judge thereof, or before any circuit judge within the territorial
             jurisdiction of the court.

Fla. R. App. P. 9.030 (b)(1)-(3) (footnotes omitted). The jurisdictional dispute

before the Second District centered on the parties’ disagreement over how to

                                         -6-
reconcile subsections (b)(2)(A) and (b)(3) of Florida Rule of Appellate Procedure

9.030. LaFave argued that because subsection (b)(2)(A) explicitly limits the

certiorari jurisdiction of district courts to review non-final orders entered by lower

courts, the reference to the original jurisdiction of the district courts to issue writs

of certiorari is also limited to cases involving non-final orders. The State,

however, argued that such a reading would render the two subsections redundant

and does not reflect the true meaning of the rules. Instead, the State argued that

subsection (b)(3) provides a district court with original jurisdiction to issue a writ

of certiorari, in accordance with its duty to review decisions of lower courts, with

no requirement that the order be a non-final one.

      The district court did not explicitly agree with either jurisdictional argument,

but nonetheless found that it had jurisdiction to hear the case. We find that the

jurisprudence of this Court does not support the district court’s jurisdictional

analysis and we, therefore, quash the decision of the district court.

              The State’s Right to Petition for Common Law Certiorari

      In 1962, this Court granted jurisdiction in State v. Harris, 136 So. 2d 633

(Fla. 1962), where the State petitioned this Court for a writ of certiorari based on

an alleged conflict of decisions, after the district court reversed the defendant’s

conviction. Id. at 634. This Court questioned “whether the [S]tate has the right to

seek certiorari from a decision of a district court in which that court in a criminal


                                          -7-
case rules adversely to the [S]tate and favorably to an accused,” and ordered the

parties to file supplemental briefs. Id. This Court determined that section 924.07

restricted the State from directly appealing to this Court following an adverse

decision of a district court in a criminal proceeding, but that section 924.07 did not

limit the State’s right to seek certiorari review in this Court. Id. at 634-35.

      In 1985, this Court decided three cases which implicated the State’s right to

petition a district court for certiorari review: State v. C.C., 476 So. 2d 144 (Fla.

1985); State v. G.P., 476 So. 2d 1272 (Fla. 1985); and Jones v. State, 477 So. 2d

566 (Fla. 1985). In C.C., the district court consolidated four appeals brought by

the State, all involving juvenile defendants, but in various postures when the State

sought appellate review. 476 So. 2d at 144. The district court dismissed all

appeals by the State, reasoning that the State does not have a constitutional right to

appeal, only statutory appellate rights. State v. C.C., 449 So. 2d 280, 280 (Fla. 3d

DCA 1983). The district court further noted its determination that article V,

section 4(b)(1) of the Florida Constitution “permits interlocutory review only in

cases in which appeal may be taken as a matter of right.” Id.

      On review, this Court approved the decision of the district court, finding no

constitutional right for the State to appeal adverse final orders of a circuit court,

including in juvenile cases, and also determining that section 924.07, Florida

Statutes (1981), which provided the State the right to appeal certain adverse


                                          -8-
criminal dispositions, does not apply to juvenile proceedings. C.C., 476 So. 2d at

145.

       This Court’s holding in State v. G.P., 476 So. 2d 1272 (Fla. 1985), was

another decision based on an opinion from the Third District, where the State

sought review of an adverse decision and had been denied relief by the district

court. The district court determined that because the State had no statutory right

under section 39.14, Florida Statutes (1981), to appeal an order dismissing a

delinquency petition based on a violation of the juvenile’s constitutional right to

speedy trial, “it also has no right to have a juvenile order reviewed by writ of

certiorari.” G.P., 476 So. 2d at 1273 (citing State v. G.P., 429 So. 2d 786 (Fla. 3d

DCA 1983)). In a very brief opinion, this Court approved the district court’s

decision. Id. In an extensive dissenting opinion, in which Justices Alderman and

Erlich joined, Chief Justice Boyd reiterated his concurring in part and dissenting in

part opinion in C.C., in which he determined that section 924.07 provides the State

with the right to appeal in juvenile delinquency cases; on this premise, he reserved

judgment on the issue regarding the State’s right to seek a writ of certiorari. Id. at

1275 (Boyd, J., dissenting).

       That same year, in Jones, this Court reviewed the decision of the Fourth

District in State v. Jones, 433 So. 2d 564 (Fla. 4th DCA 1983). In Jones, the trial

court dismissed probation violation charges against Jones. 477 So. 2d at 566. The


                                         -9-
State appealed the trial court’s decision to the Fourth District, despite the lack of a

statutory right to appeal this type of decision. Jones, 433 So. 2d at 564; see also

§ 1, ch. 90-239, Law of Florida (adding language which grants the State the right

to appeal the dismissal of a violation of probation, set to become effective July 2,

1990). The Fourth District treated the appeal as a petition for writ of certiorari and

quashed the trial court’s order. 433 So. 2d at 564. Upon review of the Fourth

District’s decision, this Court stated the issue to be resolved as “whether an

appellate court can afford review to the [S]tate by way of certiorari when the

[S]tate has no statutory or other cognizable right to appeal the judgment sought to

be reviewed.” Jones, 477 So. 2d at 566. In a brief opinion, this Court determined

that “[t]he district court erred in the instant case . . . in reviewing by certiorari a

case it could not review by appeal.” Id. This Court quashed the decision of the

Fourth District and directed the dismissal of the petition for writ of certiorari. Id.

       Chief Justice Boyd, concurring specially, wrote an extensive opinion, in

which he sought to clarify the majority’s decision and “caution against a possible

erroneous interpretation of the Court’s decision: it could be read as holding that

when there is no appeal available, certiorari is never available.” Id. at 567 (Boyd,

C.J., concurring specially). He further stated, “I simply do not believe that by its

recent decision in [G.P.] . . . this Court intended to overturn many decades of well-

established common-law doctrine on the subject of the writ of certiorari.” Id.


                                          - 10 -
(citation omitted). Chief Justice Boyd acknowledged the accuracy of the

majority’s decision that a writ of certiorari cannot be used as a substitute for a lack

of appellate rights, but cautioned that “it would be an erroneous misinterpretation

of the Court’s holding to conclude that when there is no entitlement to an appeal,

certiorari is ipso facto not available as a remedy.” Id.

                No Right to Seek Certiorari Review of Final Orders

      Three years later, in Pettis, this Court decided that the statements made in

C.C., G.P., and Jones “that no right of review by certiorari exists in criminal cases

if no right of appeal exists are limited to orders of final dismissal. These cases

shall not be construed to prohibit district courts of appeal from entertaining state

petitions for certiorari from pretrial orders in criminal cases.” 520 So. 2d at 253

(footnote omitted). In Pettis, this Court granted review to resolve a conflict

between the Fourth District in State v. Pettis, 488 So. 2d 877 (Fla. 4th DCA 1986),

and the Second District in State v. Wilson, 483 So. 2d 23 (Fla. 2d DCA 1985). Id.

at 251. In Pettis the State filed a petition for writ of certiorari with the Fourth

District, following the denial of its pretrial motion in limine. Id. The Fourth

District granted certiorari and quashed the order denying the motion in limine. Id.

Thereafter,

          Pettis filed a motion for rehearing, asserting that because the
      [S]tate could not appeal the order denying the motion in limine, it had
      no authority to seek review of the order by petition for common law


                                         - 11 -
       certiorari. As a consequence, the district court of appeal on rehearing
       withdrew its prior opinion and stated:

             The petition for writ of certiorari is denied upon authority of
           Jones v. State, 477 So. 2d 566 (Fla. 1985). See also R.L.B. v.
           State, 486 So. 2d 588 (Fla. 1986).[4]

Pettis, 520 So. 2d at 251 (quoting Pettis, 488 So. 2d at 877).

       In Wilson, the State filed a petition for writ of certiorari, requesting that the

Second District Court of Appeal review a nonappealable interlocutory order of the

trial court, which denied the State’s pre-trial motion in limine. 483 So. 2d at 24.

While Wilson was pending before the Second District, this Court decided Jones,

G.P., and C.C. In deciding Wilson, the Second District determined that these three

decisions “appear to hold that the state may not seek certiorari review of any

interlocutory or final order for which a statutory right to appeal has not been

granted.” Wilson, 483 So. 2d at 24. The district court distinguished its decision by

stating,


       4. In R.L.B., in a very brief opinion, this Court stated “Petitioner challenges
the Fifth District’s ruling by arguing (1) that the State has no right to appeal an
adverse order in a juvenile proceeding, and (2) that an appellate court cannot afford
review to the State by way of certiorari when the State has no statutory or other
cognizable right to appeal. We have recently and unequivocally endorsed both
contentions raised by petitioner. R.L.B., 486 So. 2d at 589 (citing D.A.E. v. State,
478 So. 2d 815 (Fla. 1985); [Jones; G.P.; and C.C.]).” Chief Justice Boyd wrote
separately and argued that “[t]he district court . . . was in error in holding that the
State had a right to an appeal. But the court had authority to treat the appeal as a
petition for certiorari on the ground of departure from the essential requirements of
law.” Id. at 591 (Boyd, C.J., concurring in part, dissenting in part) (citation
omitted).

                                          - 12 -
      We . . . read the decisions to mean that the state may not use the
      petition for writ of common law certiorari to obtain appellate review
      of an order that is only reviewable, if at all, by direct appeal. If there
      is no statutory right to appeal, then certiorari cannot be used to supply
      the right. On the other hand, we do not believe the above decisions
      preclude the state from seeking common law certiorari review, as
      opposed to statutory appellate review, of an interlocutory order (such
      as the denial of its motion in limine in this case) which departs from
      the essential requirements of law and for which the state would have
      no other avenue of review.

Id. at 24-25.

      This analysis was approved by this Court in Pettis. See 520 So. 2d at 251-

52. After granting review to resolve the conflict between Pettis and Wilson, this

Court agreed with the reasoning of Wilson, in which the Second District concluded

that “it had the authority to grant certiorari to review the denial of the State’s

pretrial motion in limine,” Pettis, 520 So. 2d at 251, “which departs from the

essential requirements of law and for which the state would have no other avenue

of review.” Id. at 252 (quoting Wilson, 483 So. 2d at 25). This Court clarified that

its statements in C.C., G.P., and Jones “that no right of review by certiorari exists

in criminal cases if no right of appeal exists are limited to orders of final

dismissal.” Id. at 253. This Court concluded by reiterating the requirement for “a

departure from the essential requirements of law,” when deciding whether to grant

a petition for writ of certiorari, and determined that no such showing was made.

Id. at 254.




                                         - 13 -
       The Third District in State v. Jordan, 783 So. 2d 1179, 1183 (Fla. 3d DCA

2001), addressed the jurisdictional issue presented in this case, and reached a

decision contrary to the Second District.5 In Jordan, the district court dismissed a

petition for writ of certiorari filed by the State, following the trial court’s failure to

sentence a criminal defendant pursuant to a substantial assistance agreement

previously approved by the trial court. Id. at 1181. In expressly receding from its

prior opinion in State v. Cure, 760 So. 2d 243 (Fla. 3d DCA 2000),6 to the extent

that it addressed the merits of the State’s argument in Jordan, Judge Green, writing

for the majority, acknowledged the inequity involved where a district court is

prohibited from exercising jurisdiction to enforce a negotiated plea agreement:

              We recognize that our lack of jurisdiction over this matter gives
       both the criminal defendant and trial court the unfettered discretion to
       completely disregard the terms and conditions of plea and/or
       substantial assistance agreements. We find this especially troubling

       5. The Second District in LaFave acknowledged conflict with the Third
District’s decision in Jordan, but declined to certify conflict, citing distinguishable
facts. See LaFave, 113 So. 3d at 37 n.2.

        6. In Cure, after the trial court refused to sentence the defendant pursuant to
the terms of a “boot camp agreement,” that the defendant violated, the State
appealed to the Third District. The Third District bypassed the jurisdiction issue
and decided the case on its merits: “On this appeal—the maintainability of which is
in some doubt but will be assumed arguendo—the state contends that the
agreement must be enforced as written. There is no merit whatever to this claim.
Although the defendant could not complain if he had been sentenced as agreed . . .
this does not mean that the state may interfere with or challenge an exercise of the
trial court’s sentencing discretion not to enforce it.” 760 So. 2d at 243-44
(citations omitted).


                                          - 14 -
      given the fact that such agreements are a matter of contract law, State
      v. Frazier, 697 So. 2d 944 (Fla. 3d DCA 1997) (rules of contract law
      are applicable to plea agreements); Madrigal v. State, 545 So. 2d 392
      (Fla. 3d DCA 1989) (contract principles are to be applied to plea
      agreements); see also Offord v. State, 544 So. 2d 308 (Fla. 4th DCA
      1989) (contract principles applied to substantial assistance
      agreements), but the legislature has left us no choice. We strongly
      urge the Florida legislature to study this issue and consider an
      appropriate amendment to section 924.07 in light of the factual
      scenario presented in this case.[7]

Jordan, 783 So. 2d at 1183.

      Chief Judge Schwartz, joined by Judge Shevin, wrote a specially concurring

opinion, where he “entirely concur[red] with Judge Green’s opinion that [the

district court had] no jurisdiction over this proceeding and that it must therefore be

dismissed.” Id. at 1183 (Schwartz, J., specially concurring). He, however, opined

that a trial judge has the discretion not to enforce a sentencing agreement.

                               The Trial Court’s Order

      Florida law supports the conclusion that the State may only use a writ of

certiorari to review a non-final order, or to review a final order of a circuit court

acting in its review capacity. The Second District distinguished the order in this


        7. But see Hashem v. State, 61 So. 3d 1290 (Fla. 3d DCA 2011), in which
the Third District reversed the denial of the appellant-defendant’s 3.850 motion
and petition for habeas corpus, where he argued that the DOC’s allocation of credit
for time served awarded by the trial court effectually violated the sentence that was
imposed under his plea agreement. Id. at 1290. The district court remanded the
case with instructions for the trial court to “either resentence [the defendant] in a
manner that effectuates the plea agreement . . . or allow him to withdraw his plea.”
Id. (citing Dellofano v. State, 946 So. 2d 127, 129 (Fla. 5th DCA 2007)).

                                         - 15 -
case from a “final” order and classified it as a “rare, postsentencing order.”

LaFave, 113 So. 3d at 37. This distinction is not persuasive. “A final judgment or

order is one that disposes of the cause on its merits leaving no question open for

further judicial action except for the matter of enforcement.” Philip J. Padovano,

Florida Appellate Practice § 4:3 (2013 ed.) (internal quotation marks omitted).

The general test of finality is “whether the order in question constitutes an end to

the judicial labor in the cause, and nothing further remains to be done by the court

to effectuate a termination of the cause as between the parties directly affected.”

Id.; S. L. T. Warehouse Co. v. Webb, 304 So. 2d 97, 99 (Fla. 1974). The order

granting LaFave’s motion to terminate her probation meets this definition.

      Although we recognize the perceived inequality that the Second District

sought to remedy, the district court lacked jurisdiction to grant the State’s petition

for writ of certiorari where the trial court’s order is a final order and where the

State had no statutory right to appeal the order. We find that although the district

court’s order terminating LaFave’s probation may be classified as a “rare,

postsentencing order,” it is a final order nonetheless.



                                       CONCLUSION

      We answer the certified question in the negative and find that the State did

not have the right to petition the district court for certiorari review in this case.


                                          - 16 -
Our jurisprudence dictates that a final order, such as the one presented here, is not

reviewable by common law certiorari where there is no statutory right to appeal.

We quash the decision of the Second District, as it lacked jurisdiction to review the

circuit court’s order terminating LaFave’s probation.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

CANADY, J., dissenting.

      I would approve the result reached by the Second District Court of Appeal

on the ground that the trial court’s order terminating probation—an order that

violates the law—was subject to review and correction under section 924.07(1)(e),

Florida Statutes (2011). I therefore dissent from the majority’s decision, which

unjustifiably precludes review and correction of the trial court’s erroneous order.

      Here—as the Second District cogently explains—the trial court, without any

colorable legal justification, abrogated a valid and binding plea agreement

provision that precluded the defendant from seeking early termination of her

probation. The trial court’s order granting early termination of the term of the

defendant’s probation unlawfully deprives the State of a benefit for which it

specifically bargained. But Ms. LaFave retains the benefit she derived from the


                                        - 17 -
plea bargain—avoidance of exposure to a lengthy prison sentence after trial.

Nothing in the law granted the trial court the discretion to set aside a provision of

Ms. LaFave’s valid plea agreement over the objection of the State. The trial

court’s decision to permit Ms. LaFave prematurely to walk away from the

probationary supervision to which she had agreed and to which she had been

sentenced is inconsistent with the requirements of the law. The order illegally

curtailed the sanction imposed under the plea agreement. The order should be

treated as a “sentence” that is appealable by the State under section 924.07(1)(e)

“on the ground that it is illegal.”

      The unduly restrictive interpretation contained in our caselaw of the State’s

right of appeal under section 924.07(1)(e) flows from a category mistake by which

the definition of “illegal sentence” under Florida Rule of Criminal Procedure 3.800

is imported into the wholly dissimilar context of section 924.07, and the plain

meaning of the statute is thereby cast aside. See State v. McMahon, 94 So. 3d 468,

479 (Fla. 2012) (Canady, C.J., dissenting). The Court has never provided a

plausible explanation for the transposition to the section 924.07 context of the

illegal sentence definition developed under rule 3.800.

      For the reasons expressed in my dissent in McMahon, I would recede from

McMahon. Accordingly, I would restate the certified question as follows:

      MAY THE STATE OBTAIN REVIEW OF AN ORDER
      TERMINATING PROBATION THAT VIOLATES THE

                                        - 18 -
      PROVISIONS OF A VALID PLEA AGREEMENT EXPRESSLY
      PROVIDING THAT EARLY TERMINATION OF PROBATION
      MAY NOT BE SOUGHT BY THE PROBATIONER?

This question should be answered in the affirmative, and the result reached by the

Second District should be approved. Failing to uphold the Second District’s

correction of the trial court’s error in this case works a miscarriage of justice.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance

      Second District - Case No. 2D11-5209

      (Hillsborough County)

Howard L. Dimmig, II, Public Defender, and Julius Joseph Aulisio, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Robert Jay Krauss,
Bureau Chief, and Cerese Crawford Taylor, Assistant Attorney General, Tampa,
Florida,

      for Respondent




                                         - 19 -
