Schneir v. State
Schneir v. State
Opinion of the Court
The appellant appeals from a twelve year sentence for organized fraud under Section 817.034(4)(a)(l), Fla. Stat., committed pursuant to a scheme to defraud Miami-Dade County by purloining gasoline stocks at the International Airport. The sentence was imposed pursuant to a cooperation agreement in which the Schneir agreed to testify truthfully against his co-defendants in return for a guilty plea to the first degree felony, the dropping of other charges, and the imposition of a two-year sentence. If he violated the agreement, however, he could be sentenced up to the maximum of thirty years although the prosecution was free to recommend a lesser sentence. Although it is undisputed that he materially breached the agreement by repeatedly lying under oath in his pretrial deposition, Schneir contends on appeal that he was nonetheless entitled to receive the two years on the assertion that the contract was modified to his benefit by
Simply put, the alleged “modification” is, for a variety of reasons, ineffective as a matter of law:
First, it is clear that the parties, the defendant and the State, never came close to a meeting of the minds as to the terms of the modification — thus rendering the “contract” relied upon not only “unenforceable,” but in reality not a contract at all. In the case of the prosecution in particular, its alleged representation, upon which Schneir relies on appeal, that he would be given “one last chance” if he testified, falls far short of a binding undertaking for a two year sentence.
Second, even if an understanding that the State would, in essence, forgive the breach had been established, any such promise would have been unenforceable. This is because, like an initial contract, a modification or novation requires lawful consideration for its validity. See Newkirk Construction Corp. v. Gulf County, 366 So.2d 813 (Fla. 1st DCA 1979); 11 Fla. Jur.2d Contracts § 207 (2003). The only performance, however, even allegedly required of him by the “modification” was that Schneir testify truthfully at the trial. But he was obligated to do just that by the express terms of the original contract he had already broken — as well as by the obligation imposed on any citizen. It is well settled that a promise to perform what one is already required to do by an
We find no merit in the other arguments presented.
Affirmed.
. Although his testimony was severely challenged by his co-defendants during cross-examination on the ground, among others, that he had already admitted to perjury in his deposition, they were found guilty by the jury.
. In any case, the "last chance” promise was fulfilled when the State recommended, and Schneir received, twelve years rather than the thirty he faced under the contract.
. In fact, it is highly doubtful that even this is true. As Schneir testified, when cross-examined at trial:
Q: Mr. Schneir, you plead [sic] guilty in this case, right?
A: Yes, I did.
Q: Do you have a plea agreement?
A: Yes.
Q: And do lies help you in this case?
A: No.
Q: As a matter of fact, what do lies get you
in this case?
A: Worse off.
Q: And the more lies you tell, what happens?
A: The worse it gets.
Q: Have you been sentenced yet?
A: No, I have not.
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Q: What do you fear is going to happen?
A: I could get the 30 years/
Q: But why would you get the 30 years?
A: For lying.
(Supplemental Record, transcript pages 2101-2102).
Reference
- Full Case Name
- Brian Gerald SCHNEIR v. The STATE of Florida
- Cited By
- 5 cases
- Status
- Published