SCHNEIR v. ST

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Docket Number

No. 3D09-555.

Attorney(S)

Tannebaum Weiss and Brian Tannebaum, Miami; H. Scott Fingerhut, Miami, for appellant. Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.

Judges

SCHWARTZ, Senior Judge.

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Smart Summary

Factual and Procedural Background

The appellant, Brian Gerald Schneir, was sentenced to twelve years for organized fraud under Section 817.034(4)(a)(1), Florida Statutes, related to a scheme defrauding Miami-Dade County by stealing gasoline stocks at the International Airport. Schneir entered into a cooperation agreement, pleading guilty to a first-degree felony and agreeing to testify truthfully against his codefendants. In exchange, other charges were dropped, and a two-year sentence was to be imposed. However, the agreement provided that if Schneir violated its terms—specifically by lying under oath—he could be sentenced up to the statutory maximum of thirty years, although the prosecution retained discretion to recommend a lesser sentence. Schneir breached the agreement by repeatedly lying in a pre-trial deposition. Despite this, he contended on appeal that the agreement was modified by mutual consent to allow him to receive the two-year sentence if he testified at trial. The trial court rejected this claim and imposed the twelve-year sentence. Schneir appealed this sentence.

Legal Issues Presented

Whether the cooperation agreement was effectively modified by mutual agreement to entitle Schneir to a two-year sentence despite his material breach by lying under oath.
Whether any alleged modification of the agreement was supported by valid consideration and thus enforceable under contract law principles.

Arguments of the Parties

Appellant's Arguments

Schneir argued that the original cooperation agreement was modified by mutual agreement with the State, entitling him to the two-year sentence if he testified at trial despite prior breaches.
He asserted that the State’s representation of giving him "one last chance" to receive leniency amounted to a binding modification of the contract.

Appellee's Arguments

The State contended that no enforceable modification existed because the parties never reached a meeting of the minds regarding new terms.
The State argued that any alleged promise of leniency was not a binding contractual obligation and was fulfilled by recommending a twelve-year sentence rather than the maximum thirty years.
The State further maintained that no valid consideration supported the alleged modification since Schneir was already obligated to testify truthfully under the original agreement and by law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Frazier, 697 So.2d 944, 945 (Fla. 3d DCA 1997)	Application of contract law principles to plea agreements.	Used to frame the analysis of the cooperation agreement and its alleged modification.
O'Neill v. Corp. Trustees, Inc., 376 F.2d 818 (5th Cir. 1967)	Requirement of mutual assent (meeting of the minds) for contract formation.	Supported the conclusion that no meeting of the minds occurred for the alleged modification.
Robbie v. City of Miami, 469 So.2d 1384 (Fla. 1985)	Principles regarding mutual assent and contract formation.	Reinforced the necessity of mutual agreement for contract enforceability.
Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla. 1957)	Contract formation depends on agreement of external signs, not just internal intent.	Supported the finding that unilateral intention by Schneir was insufficient.
New-kirk Construction Corp. v. Gulf County, 366 So.2d 813 (Fla. 1st DCA 1979)	Requirement of lawful consideration for contract modifications.	Applied to determine that the alleged modification lacked valid consideration.
F.L. Stitt Co. v. Powell, 94 Fla. 550, 114 So. 375 (1927)	Promise to perform an existing contractual duty is not valid consideration.	Used to reject Schneir’s claim that testifying truthfully constituted new consideration.
Slattery v. Wells Fargo Armored Service Corp., 366 So.2d 157 (Fla. 3d DCA 1979)	Same as above regarding consideration for contract modifications.	Supported the court’s conclusion on lack of consideration.
Davidpur v. Counne, 972 So.2d 891, 892 (Fla. 3d DCA 2007)	Requirement of new consideration for enforceable contract modifications.	Applied to affirm that Schneir failed to prove a binding modification.
Blair v. Howard, 144 Fla. 421, 198 So. 80, 81 (1940)	General principles of contract law related to modifications and consideration.	Supported the court’s reasoning on contract modification requirements.

Court's Reasoning and Analysis

The court first examined whether there was a valid modification of the original cooperation agreement. It found no meeting of the minds between Schneir and the State regarding any alleged modification promising a two-year sentence if Schneir testified at trial. The court emphasized that the State’s purported representation of a "last chance" was insufficient to constitute a binding contractual term.

Second, the court analyzed whether any such modification was supported by lawful consideration. It concluded that Schneir’s obligation to testify truthfully was already required by the original contract and by law, thus providing no new consideration to support a valid modification or novation. The court cited established Florida contract law principles holding that a promise to perform an existing duty cannot serve as valid consideration for a contract modification.

Finally, the court rejected Schneir’s other arguments without detailed discussion and affirmed the twelve-year sentence imposed under the original cooperation agreement’s terms after Schneir’s material breach.

Holding and Implications

The court AFFIRMED the twelve-year sentence imposed on Schneir.

The direct consequence of this decision is that Schneir is not entitled to the reduced two-year sentence under the alleged modification of the cooperation agreement because no enforceable modification existed. The ruling upholds the principle that a defendant who materially breaches a plea agreement cannot claim the benefit of leniency promised under that agreement absent a valid contract modification supported by mutual assent and consideration. No new precedent was established; the court applied settled contract law principles to the facts of the case.

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Brian Gerald SCHNEIR, Appellant, v. The ST of Florida, Appellee.

SCHWARTZ, Senior Judge.

The appellant appeals from a twelve year sentence for organized fraud under Section 817.034(4)(a)(1), 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 codefendants 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 pre-trial 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 "mutual agreement" with the State if, as he did, he thereafter testified for the State at trial. Applying the principles of contract law which are applicable to the issue, see State v. Frazier, 697 So.2d 944, 945 (Fla. 3d DCA 1997), we find no merit to this contention, which amounts to the un-acceptable claim that he was entitled to the same lenient sentence whether he violated the contract or not — that, in other words, no bad deed should go unrewarded.

Although his testimony was severely challenged by his codefendants 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.

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. See 11 Fla. Jur.2d Contracts §§ 19, 22, 23, 207, 227 (2003). See O'Neill v. Corp. Trustees, Inc., 376 F.2d 818 (5th Cir. 1967); Robbie v. City of Miami 469 So.2d 1384 (Fla. 1985). The fact that he may have unilaterally intended or thought that if he testified at the trial he would receive the two years is plainly insufficient. Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla. 1957) ("The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing.") (citations omitted).

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.

* * *

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).

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 New-kirk 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 existing contract or otherwise is not valid consideration. F.L. Stitt Co. v. Powell, 94 Fla. 550, 114 So. 375 (1927); Slattery v. Wells Fargo Armored Service Corp., 366 So.2d 157 (Fla. 3d DCA 1979); 11 Fla. Jur.2d Contracts § 89 (2003). As we have recently held, this rule applies directly to a purported modification or novation. See Davidpur v. Counne, 972 So.2d 891, 892 (Fla. 3d DCA 2007) ("Counne presented no evidence at trial of any addition action she promised to do as consideration for the modification which she was not already bound to do. In light of these facts, Counne failed to prove her affirmative defense that there was a binding oral contract to modify. . . ."); See also Blair v. Howard, 144 Fla. 421, 198 So. 80, 81 (1940).

We find no merit in the other arguments presented.

Affirmed.