Plea Bargaining in Florida

Plea bargaining in Florida is the negotiation in which the prosecutor and the defense agree that the defendant will plead guilty or no contest in exchange for a lesser charge, dismissed counts, or a sentence term, governed by Florida Rule of Criminal Procedure 3.171.

Below: deal types, each participant’s role, the plea hearing, withdrawal, the limits of a deal, and how The Law Offices of Robert David Malove negotiates pleas in Fort Lauderdale.

What Does Florida Rule 3.171 Say About Plea Bargaining?

Florida Rule 3.171(a) says that ultimate responsibility for sentence determination rests with the trial judge, and it encourages the prosecutor and the defense attorney to discuss and agree on pleas. Plea discussions must be conducted with the defendant’s counsel.

What Are the Types of Plea Deals in Florida?

Florida plea deals come in three types, all drawn from Rule 3.171(b)(1)(A):

• Charge bargain. The defendant pleads to a lesser included offense or lesser degree, with the consent of the court and the prosecutor (Rule 3.170(h)).
• Count bargain. The prosecutor abandons other charges.
• Sentence bargain. The prosecutor recommends a sentence, agrees not to oppose the defense request, or agrees to a specific sentence. A recommendation does not bind the judge.

Is a federal plea deal different?

A federal plea deal is governed by Federal Rule of Criminal Procedure 11, which bars the judge from plea discussions. The firm’s article on federal plea agreements covers the federal side.

Who Negotiates a Plea Bargain in Florida?

The prosecutor and the defense attorney negotiate a Florida plea bargain, and the defendant decides whether to accept it.

• Prosecutor. The prosecutor must tell the judge all material facts about the offense and the defendant’s background before the plea is accepted (Rule 3.171(b)).
• Defense counsel. Defense counsel must advise the defendant of every plea offer and its likely results, and cannot conclude a deal without the client’s full consent (Rule 3.171(c)).

Does the right to effective counsel apply to plea deals?

The Sixth Amendment right to effective counsel applies to plea deals. Counsel must communicate formal plea offers (Missouri v. Frye, 2012), and bad advice that leads a defendant to reject a better offer can be grounds for relief (Lafler v. Cooper, 2012).

What Role Does the Judge Play in Plea Bargaining?

The judge in a Florida plea bargain may take a limited part in plea discussions, under limits set in State v. Warner, 762 So. 2d 507 (Fla. 2000):

• No initiation. The judge must not start a plea dialogue but may join one at a party’s request.
• Preliminary sentence. The judge may state a likely sentence on the record, which is not binding.
• Right to withdraw. If the sentence must exceed it, a defendant who relied on it may withdraw the plea.
• No trial penalty. The judge must not imply a harsher sentence for going to trial.
• On the record. All plea discussions involving the court must be recorded.

What Rights Does the Victim Have in a Florida Plea Bargain?

A crime victim in Florida has the right, on request, to confer with the prosecutor about any plea agreement and to be heard at the plea hearing (Article I, Section 16(b), Florida Constitution). Florida Statute 960.001(1)(g) requires the state attorney to consult the victim of a felony involving physical or emotional injury, or the family in a homicide, about plea agreements.

What Does the Judge Ask Before Accepting a Plea?

The judge confirms under oath that the plea is voluntary and has a factual basis (Rule 3.172). The defendant confirms understanding of:

• The charge, the maximum penalty, and any mandatory minimum
• The jury trial and related rights the plea waives
• The complete terms of the plea agreement
• The warning that a plea may lead to deportation of a non-citizen, even if adjudication is withheld (Rule 3.172(c)(8))

Can a Plea Deal Be Withdrawn in Florida?

A plea deal can be withdrawn by either side until the judge formally accepts the plea (Rule 3.172(g)). After acceptance, timing controls:

• Before sentencing. The judge may allow withdrawal and must allow it on good cause (Rule 3.170(f)).
• After sentencing. A motion to withdraw a guilty plea after sentencing must be filed within 30 days, on the limited grounds in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii) (Rule 3.170(l)).

Can a withdrawn plea be used against the defendant?

A withdrawn guilty plea is inadmissible in any civil or criminal proceeding under Florida Statute 90.410, and so are a no contest plea, an offer to plead, and related statements, except in a perjury prosecution.

What Can and Cannot Be Negotiated in a Florida Plea Bargain?

The charge, the counts, and the sentence recommendation can be negotiated in a Florida plea bargain, but a mandatory minimum generally binds once the defendant pleads to the offense that carries it.

How do mandatory minimums limit a deal?

Mandatory minimums limit a deal by fixing the lowest sentence. Trafficking in 28 to under 200 grams of cocaine carries a 3-year mandatory minimum and a $50,000 fine, with no withhold of adjudication (Statute 893.135(1)(b), (3)). A plea deal on a drug trafficking charge therefore turns on the charge itself, or on a substantial assistance motion by the state attorney under Statute 893.135(4).

What Are the Pros and Cons of a Plea Deal?

The pros and cons of a plea deal weigh certainty against rights given up.

• Certainty. An agreed sentence replaces the risk of the maximum penalty after trial.
• Waived rights. The plea gives up the jury trial and the right to confront witnesses.
• Limited appeal. The plea waives appeal of the judgment unless an issue is reserved.
• Collateral consequences. Immigration consequences can follow.

Why Hire The Law Offices of Robert David Malove?

Robert David Malove is a Florida Bar Board Certified Criminal Trial Lawyer who has defended felony cases in Broward, Miami-Dade, and Palm Beach Counties since 1984, and is a former Assistant Public Defender in all three. The firm’s Fort Lauderdale office at 200 SE 9th Street is a short walk from the Broward County Courthouse.

A plea offer is only as strong as the defense case behind it, so the first rule is to speak with a Fort Lauderdale criminal defense lawyer before accepting one.

Call (954) 861-0384 for a free consultation with a Fort Lauderdale plea bargaining lawyer.

Plea Bargaining in Florida: Frequently Asked Questions

Does a judge have to accept a plea deal in Florida?

A judge does not have to accept a plea deal in Florida, because Rule 3.171(a) leaves sentencing to the trial judge. If the judge rejects a negotiated plea, Rule 3.172(h) lets the defendant withdraw it.

Does a defendant get time to think about a plea offer?

A Florida defendant gets a reasonable time to deliberate before being called on to plead, under Rule 3.170(j). An offer can still expire, as in Missouri v. Frye.