To Plea or Not to Plea
To plea or not to plea, that is the question. Everyday in criminal courtrooms across this wonderful land, persons accused of felony, misdemeanor, or traffic offenses must make tough decisions on whether to accept a plea offer based on negotiations or forego the offer and proceed to trial. Although the intention of the system is that the decision is informed, the actual choice is never an easy decision.
All criminal cases begin with some type of arraignment in open court. At the arraignment, the “defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere.”[i] Nearly every criminal case begins with a “not guilty” plea.[ii] It is almost comical when the news media reports that so-and-so plead “not guilty” because that is how case begins to move forward. In fact, if the accused refuses to speak at the arraignment the trial court is automatically mandated to enter a “no guilty” plea for the person.[iii]
At some point, the prosecutor and the defense attorney[iv] can enter into plea negotiations where the two sides discuss how to resolve the case. Ultimately, the trial court can accept or reject any agreed upon plea bargain by the parties. Although it does not happen often, there are situations where the trial court flat rejects the negotiations between the parties and makes the defendant either plead open to the court or proceed to trial.[v] That is, however, rare.
If the parties agree to a resolution and the trial court accepts the negotiations, the accused will present himself/herself in open court and usually plead guilty. In Florida, there are two types of guilty pleas. There is a guilty because “I am guilty” plea or there is a “guilty in my best interest” plea. The difference being that the “best interest plea” slightly suggests that the accused is accepting the plea because there is some small advantage to doing so (but make no mistake it does not mean that person should not viewed as guilty (just not as guilty because I acknowledge my guilt)).
There are also a second category of guilty plea which is the “open plea” as opposed the negotiated sentence/plea agreement guilty plea. An “open” plea means that the defendant is pleading guilty (either in their best interest or because they are guilty) to the charges without any agreed upon sentence and it is up the trial court to decide what is the appropriate sentence to impose. In Florida, the trial court has wide latitude in this regard because the trial court on a single felony can sentence defendant anywhere up to the maximum penalty. If there are multiple felonies, then the maximum sentences can be aggregated for a large number.
For instance, let’s say the defendant stole a check and attempted to pass the check at a supermarket as his own. He gets caught, is arrested, and charged with grand theft 3rd degree and uttering a forged instrument. Under Florida law, both grand theft 3rd degree and uttering a forged instrument are third degree felonies, each punishable by five years in the prison system. If the defendant was only charged with one third degree felony, then he would be looking a maximum penalty of five years. However, in the above scenario, he is looking at a maximum penalty of ten years (5 + 5 = 10). Suffice to say, the maximum penalty will depend entirely on the actual charges plead to and the respective classification of the felony or misdemeanor.
Before the trial court can accept the defendant, the trial court must conduct what is referred to a plea colloquy. A plea colloquy is a fancy way of saying that the trial court must conduct a question and answer session with the defendant under oath and on the stenographic record kept in the court file. During the colloquy, it is the trial court’s solemn duty to ensure that the defendant is pleading “knowingly, intelligently, and voluntarily.” If the plea is not entered “knowingly, intelligently, and voluntarily,” then the plea is considered constitutionally “void ab initio”[vi] and may be withdraw (under some circumstances).
During the colloquy, the trial court reviews the general terms of the plea agreement and then moves into the constitutional criminal rights that the defendant will be giving up accepting the plea. The plea colloquy usually mimics a circuit standard plea form. For instance, in Hillsborough County which is Tampa, Florida, the plea form reads in pertinent part:
I understand I have a right to plead not guilty and the right to be tried by a jury to determine whether I am guilty or not. I understand that I have the right to be represented by an attorney at the trial and if I cannot afford one, the Court will appoint an attorney to represent me. I understand I have the right to compel the attendance of witnesses on my behalf, the right to confront and cross-examine all witnesses testifying against me, and the right not to testify or be compelled to incriminate myself. I understand if I plead guilty or nolo contendere, there will be no trial and I waive all the rights that go along with a trial.
I understand if I plead guilty or nolo contendere without reserving the right to appeal, I am waiving my rights to appeal all matters relating to the judgment including the issue of my guilt or innocence, but not impairing my right to review by appropriate collateral attack. I understand if I wish to take an appeal and cannot afford an attorney to help me in my appeal, the Court will appoint an attorney to represent me for that purpose.
I certify that no one has threatened or coerced me in any way in order to get me to enter this plea, and I am pleading freely and voluntarily. Other than the terms of the plea negotiations as set forth above (if applicable), no one has promised me anything upon which I have relied in order to influence me to enter this plea.
The plea colloquy in criminal court has vastly expanded and grown over the years as the Supreme Court of the United States has weighed in on what is verbiage and admonitions are required under the constitution. As such, the trial court must advise the accused that if the defendant is not a citizen that the plea might subject the defendant to deportation and/or exclusion from the country. The court must also advise the defendant that if the defendant lies to the court or is otherwise untruthful that the plea is under oath and the defendant could be charged with perjury. The trial court has to warn the defendant about several collateral issues like possible driver’s license suspensions for drug offenses or not paying certain taxed costs, or extreme penalties if the offense is a qualifying sexual offense, or credit for time previous served in custody, or how much actual time a person might serve. The court also advises the defendant that the current plea and subsequent conviction could be used in the future to possibly enhance a penalty of the defendant gets into trouble again.
After the trial court is fully satisfied that the defendant has been advised of the rights he/she is giving up, the trial court requests that the prosecutor recite the factual basis for each element of each and every offense (including proof of venue and identity).[vii]
When the factual basis is completed, the trial court will announce that it finds that the plea has been entered “freely and voluntarily.” At that point, the trial court will impose the sentence (usually as agreed upon). At the end of the plea, the court will advise the defendant that if the defendant has thirty days to appeal the judgment and sentence of the court. If the defendant cannot afford an attorney, one can be appointed for that purpose.
As an experienced criminal practioner, I explain to my clients that I personally prefer trying the case rather than accepting some plea negotiations regardless of the sanctions for a plethora of reasons; however, the ultimate decision to accept a plea offer lies with entirely with the defendant. Putting my preference aside, I ethically review the pros and cons of accepting the plea agreement versus the known and unknown evidence for trial. Like the song by the Black Sheep, “The Choice is Yours.” The defense attorney cannot plead a defendant guilty without their consent. In many instances, the decision to accept a plea agreement is a deeply personal choice based upon a ton of factors that are different for everyone and every case.[viii] Whatever the client’s decision, I want that decision to be a completely informed decision, so I do my best to ensure that the client is fully informed.
Keep in mind that I developed my trial-rather-than-plea preference over time. For the longest time, the only people I represented were persons charged with extremely serious felony offenses like homicide, criminal traffic fatalities, sex offenses, and crimes involving abuse to children and these offenses usually had awful fact patterns. The plea offers on these offenses were often long prison sentences followed by terrible terms of probation (that are usually impossible for anyone to complete). Faced with a terrible plea offer, the only choice was to proceed to trial. But I learned something over the years, criminal cases are not always “slam dunks” and jurors take the “reasonable doubt” standard to heart. Based on the facts and charges, the situation may be incredibly dark, but maybe not impossible.
Contact Anthony Candela at (813) 417-3645 or visit on the web www.candelalawfirm.com for a review of your case.
The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.
Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer
[i] Fla. R. Crim. P. 3.170(a); “nolo contendere” is Latin for “no contest” which essentially means, “I am not saying I did it; I am not saying I did not do it; all I am saying is that I do not wish to fight or contend this allegation.”
[ii] All cases begin with a “not guilty” plea, unless there are one of two usual scenarios: (1) there is some agreement reached before the defendant attends the arraignment or (2) the case is relatively minor and the defendant is allowed to plead guilty straightaway. The guilty straightaway is almost never the case unless the matter is either a minor misdemeanor or criminal traffic offense. As with all situations, there are limited exceptions that do not apply to this article.
[iii] Fla. R. Crim. P. 3.170(c) “(c) Standing Mute or Pleading Evasively. If a defendant stands mute, or pleads evasively, a plea of not guilty shall be entered.”
[iv] If the defendant is representing himself/herself (known as “pro se” (or Latin for “on your own”)), then the person can enter into plea negotiations with the only requirement imposed by the rules of procedure in Florida is that the discussions be on the record (meaning the discussions are mechanically recorded in open in the court room). This is a two-fold requirement. First, it protects the parties from unnecessary accusations of not playing fair or one side accusing the other side of saying one thing and then doing another. Second, there are ethical responsibilities under the rules of professional conduct that require that when attorneys are dealing with unrepresented persons or parties that the attorney deal fairly. A stenographic record covers all of those goals.
[v] Fla. R. Crim. P. 3.171(a) “(a) In General. Ultimate responsibility for sentence determination rests with the trial judge. …”
[vi] Latin for “void or nullified from the beginning”
[vii] In misdemeanor cases only, the parties can stipulate to a factual basis instead of having the state recite the factual basis. In some states like New York, the court requires the defendant to state the facts that the he/she is pleading to on the record.
[viii] Like snowflakes, every case has different facts and different personnel (like alleged victim, prosecutor, judge, law enforcement, defendant) and cannot easily be compared to another.