I'd like to Withdraw My Plea Please: a Florida primer on motions to withdraw pleas before or aft
Plea bargains are evaluated based upon contract law. Typically, the courts make a legal determination to review for the basics: offer, acceptance, intent, and consideration. The idea is that there is a “bargained-for-exchange” between the prosecutor and the defendant for specific terms and conditions of the plea. Some of the terms and conditions are negotiated and some are imposed by statute. Lastly, the court must accept the plea agreement.[i]
In criminal cases, there are often competing interests or motivations – the defendant’s and the prosecution’s. The prosecution may be motivated to resolve a specific case because the victim’s considerations. For instance, a prosecutor might want to protect a victim from testifying because the victim is of a tender age or was traumatized during the commission of the crime. In these instances, the prosecutor might seek some compromise resolution which is slightly less then would be expected to entice the defendant into accepting the offer so that the victim does not have to relive the entire event while they are testifying.
On the other hand, a defendant’s consideration in accepting a plea bargain is always foregoing his Sixth Amendment right to a jury trial and all the other trial rights.[ii] This is the bargaining chip that the defendant must part with in order to accept a plea bargain. In some cases, a defendant may also have to give up his right to an appeal.
Understanding the basics, there are times when defendant enters a plea and “gets cold feet” and wants to get out of the deal. There are limited circumstances where the plea bargain can be unwound subject to the court’s approval. Florida recognizes two (2) instances: withdrawing the plea after the defendant is sentenced and withdrawing the plea before the court imposes the sentence. In some limited instances, a defendant may enter a guilty plea and have the sentencing set off for some time to complete some task for the prosecutor or court. For instance, the court wants to see some psychological records before imposing sentence or the prosecutors want “substantial assistance” from the defendant to solve some other crime. In either event, a plea can be withdrawn, but it’s the timing that matters.
Withdrawing Plea Before Sentence is Imposed
Rule 3.170(f) clearly states:
(f) Withdrawal of Plea of Guilty or No Contest. The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or,with the consent of the prosecuting attorney, allow a plea of guilty or no contest of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest and later withdrawn the plea may not be used against the defendant in a trial of that cause.
Fla. R. Crim. P. (Emphasis added).
The case law construing Rule 3.170(f) is clear, well-established, and uniformly applied across the state. In Rappaport v. State, 24 3d 1211 (Fla. 4th DCA 2009), the Fourth District explained the basics when it stated:
In a motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(f), “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn.” Motions made before a sentence “must be liberally construed in favor of the defendant, as the law favors a trial on the merits.” Johnson v. State, 971 So.2d 212, 216 (Fla. 4th DCA 2008). In considering a motion filed under rule 3.170(f), “a trial court is required to allow withdrawal of a plea if a defendant establishes good cause. Upon a lesser showing than good cause, the rule allows the court to use its discretion.” Taylor v. State, 870 So.2d 72, 73 (Fla. 2d DCA 2003) (citation omitted); Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003) (“[I]n situations where less than good cause is shown, a trial court’s decision will not be reversed absent an abuse of discretion.”)
“In order to show cause why the plea should be withdrawn, mere allegations are not enough; the defense must offer proof that the plea was not voluntarily and intelligently entered.” Robinson v. State, 761 So.2d 269, 274 (Fla.1999). “A defendant should be permitted to withdraw a plea if she files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting her rights.” Smith, 840 So.2d at 406 (emphasis omitted). “Unless the record conclusively shows the defendant is not entitled to relief, due process requires a hearing.” Bemis v. State, 980 So.2d 625, 627 (Fla. 4th DCA 2008).
Id., at 1213. Motions to withdraw pleas before sentencing should be freely granted if there is any reasonable reason to do so. In fact, motions to withdraw pleas before sentencing have the same liberal standard as civil motions to vacate/set aside default judgments and must be liberally construed as the law favors an adjudication on the merits. See North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 852 (Fla. 1962) (If there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and allowing the trial upon the merits.)
There are several relevant cases on motions to withdraw plea before sentencing involving trafficking and “substantial assistance.” In Campbell v. State, 453 So. 2d 525 (Fla. 5th DCA 1984), the defendant entered a plea, but the terms and conditions of the “substantial assistance” agreement (what was to be required of the defendant to obtain such a recommendation) were not disclosed to the trial court at the time of the plea. As a result, the plea was a nullity. The Fifth District explained:
The nature of the “substantial assistance” was not disclosed to the trial judge when the plea was accepted. The court did advise defendant, when accepting his plea, that if the State would represent to the court that defendant had rendered substantial assistance “in accordance with the statutory requirements” the minimum three-year sentence would not be imposed. Since the bargain between the State and defendant did not comport with the statute, there was no legal basis for it, and thus the plea bargain was a nullity. Defendant’s motion for leave to withdraw the plea should have been granted. See, Forbert v. State, 437 So.2d 1079 (Fla.1983); Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
Id., at 526. (Emphasis added). In Timothee v. State, 721 So. 2d 726 (Fla. 4th DCA 1998), the only mention of a “substantial assistance agreement” during the plea colloquy was the trial court’s reference to “some special conditions” of (Timothee’s) release on his own recognizance; however, off the record, there were several conversations between the federal agents and the defendant’s counsel. (Timothee) was not privy to those conversations. Subsequently, (Timothee) moved to withdraw his plea because he did not fully understand what was required of him to complete the “substantial assistance agreement.”
The trial court denied the motion, but the Fifth District reversed and wrote:
Florida Rule of Criminal Procedure 3.170(f) governs withdrawal of pleas and provides: “The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn....” Fla. R.Crim. P. 3.170(f). This rule should be liberally construed in favor of the defendant because “[t]he law inclines toward a trial on the merits.” Yesnes v. State, 440 So. 2d 628, 634 (Fla. 1st DCA 1983). As we previously recognized, a plea agreement is a contract requiring a meeting of the minds. Offord v. State, 544 So. 2d 308 (Fla. 4th DCA 1989). When it appears any party is mistaken, confused, or misunderstands essential terms of the agreement, there can be no meeting of the minds. Id.
Under the facts of this case (Timothee) should have been allowed to withdraw his plea. The record contains no evidence contradicting (Timothee’s) asserted misunderstanding of the terms of his substantial assistance agreement. In such a case, a liberal construction of rule 3.170(f) militates in favor of allowing (Timothee) to withdraw his plea.
Id., at 777.[iii] In Johnson v. State, 947 So. 2d 1208 (Fla. 4th DCA 2007), the Fourth District explained:
When a defendant files a motion to withdraw his plea prior to sentencing, pursuant to Florida Rule of Criminal Procedure 3.170(f)2, he is entitled to withdraw his plea as a matter of right when good cause is shown. Harrell v. State, 894 So. 2d 935 (Fla.2005); Robinson v. State, 761 So. 2d 269, 274 (Fla.1999). Further, under this rule, the trial court may, at its discretion, permit the defendant to withdraw a plea in the interest of justice upon a showing that falls below good cause. Id. The burden to establish good cause under the rule is on the defendant. Id. However, the rule should be liberally construed in favor of a defendant because the law inclines towards a trial on the merits and, where it appears the interests of justice would be served, a defendant should be permitted to withdraw the plea. Smith v. State, 840 So. 2d 404, 406 (Fla. 4th DCA 2003); Robinson, 761 So. 2d at 274. Good cause to withdraw a plea is said to be present when the plea is “infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.” Onnestad v. State, 404 So. 2d 403, 405 (Fla. 5th DCA 1981).
Id., at 1210. In Arzola v. State, 994 So. 2d 1209 (Fla. 5th DCA 2008), the defendant moved to withdraw his plea before sentencing because it became clear that the state was not going to honor the “substantial assistance agreement.” The Fifth District explained:
On this record, the motion to withdraw plea under the liberalized standard applicable prior to sentencing should have been granted. Fla. R.Crim. P. 3.170(f). Arzola entered a plea conditioned on the understanding that he would be allowed to provide substantial assistance pursuant to section 893.135(4), Florida Statutes. He was not allowed to do so. We agree that this “misapprehension” constituted good cause for withdrawal of the plea prior to sentencing.
Id., at 1209. Additionally, in Harper v. State, 152 So. 3d 735 (Fla. 4th DCA 2014), the Fourth District ruled:
We reverse the denial of appellant’s motion, filed before sentencing, to withdraw his pleas pursuant to Florida Rule of Criminal Procedure 3.170(f). There was no meeting of the minds as to the length of time appellant had to perform under a substantial assistance agreement and his efforts were shut down by the supervising detective after only 16 or 17 days. See Arzola v. State, 994 So. 2d 1209 (Fla. 5th DCA 2008); Timothee v. State, 721 So.2d 776 (Fla. 4th DCA 1998); Pate v. State, 547 So. 2d 316 (Fla. 4th DCA 1989); Elias v. State, 531 So. 2d 418 (Fla. 4th DCA 1988); Soto v. State, 515 So. 2d 249 (Fla. 5th DCA 1987). No direct evidence contradicted appellant’s claim that he did not understand that his efforts at substantial assistance were subject to such a short time frame. The plea conference was abbreviated and perfunctory. The October 26, 2012 order provides that appellant’s release from jail prior to sentencing was “solely for the purpose of assisting law enforcement.” Although the order was silent as to the length of time that appellant had to perform and the agreement gave the supervising detective the “sole discretion” to take appellant into custody “when the defendant is no longer needed in ongoing investigations,” appellant testified that he believed he had until January 28, 2013, when his sentencing was set, in which to “produce something,” presumably a drug transaction.
Under the circumstances, the trial court’s decision is reversed. The nature, scope and duration of the substantial assistance agreement were vague, both when initially explained to appellant and with respect to its implementation. On remand, appellant shall be given leave to withdraw his plea and proceed to trial.
Id., at 736-7. Before sentencing, almost any reasonable reason can get a plea withdrawn.
Withdrawing Plea after Sentence is Imposed
Rule 3.170(l) controls the motion presented in this case. Fla. R. Crim. P. In Campbell v. State, 125 So.3d 733 (Fla. 2013), the Florida Supreme Court explained:
As to the first issue, Florida Rule of Criminal Procedure 3.170(l) applies to motions to withdraw plea agreements made after sentencing:
Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)–(e)4 except as provided by law.
Fla. R. Crim. P. 3.170(l). The requirement of manifest injustice or prejudice is not explicitly stated in rule 3.170(l). This requirement has been interpreted and upheld through the case law of this Court. See Williams v. State, 316 So.2d 267, 275 (Fla.1975); Richardson v. State, 246 So.2d 771, 774 (Fla.1971). In Williams, the defendant sought to have his guilty plea vacated based on the trial court’s failure to establish a factual basis for the plea. 316 So.2d at 269. This Court noted that at the time there was no Florida rule setting guidelines for plea withdrawal after sentencing. (footnote omitted) Id. at 273. This Court agreed with the requirements for a plea withdrawal subsequent to sentencing that were set forth in section 2.1, Pleas of Guilty, American Bar Association Standards for Criminal Justice. (footnote omitted) See id. at 273–74. This Court disagreed with the petitioner, finding that vacating the plea would be too drastic a sanction where the record clearly reflected that the petitioner understood the plea agreement, unless the petitioner could show prejudice or manifest injustice as a result of the trial judge’s non-compliance. Id. at 275. This Court recognized that the ABA Standard was in accordance with this Court’s earlier decision in Richardson, 246 So.2d at 774, where it stated (“... [W]e hold that the violation of a rule of procedure prescribed by this Court does not call for a reversal of a conviction unless the record discloses that non-compliance with the rule resulted in prejudice or harm to the defendant.”). Subsequent decisions of this Court have upheld the requirement that a defendant demonstrate manifest injustice or prejudice requiring correction when seeking to withdraw a plea after the rendition of a sentence. State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003); see Lopez v. State, 536 So.2d 226, 229 (Fla.1988). Therefore, we once again recognize that pursuant to Rule 3.170(l) a defendant must make a showing of manifest injustice or prejudice in order to withdraw a plea of guilty or nolo contendere following the rendition of a sentence.
Campbell, 125 So.3d 735-6. It is common vernacular “manifest injustice” means “means something which is ‘obviously unfair’ or ‘shocking to the conscience.’ It refers to an unfairness that is direct, obvious, and observable”[iv]
The decision to withdraw a plea is a serious one with extreme ramifications because if successful the defendant will again face whatever maximum penalties were statutory allowed (and probably will have to proceed to trial). The decision should be done under close consultation with an experience criminal defense attorney. Under Florida law, a defendant may withdraw his plea before sentencing for almost any reasonable reason related to basic understanding and voluntariness. On the other hand, a defendant may only withdraw his plea after he is sentenced if there the high standard of "manifest injustice" is demonstrated.[v] Tread carefully into these waters.
Anthony Candela is a three-time, Board-Certified attorney and expert in criminal trial. 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 (Pittsburgh, Pennsylvania) and his B.A. in Political Science from King’s College in 1996 (Wilkes-Barre, Pennsylvania). He is board certified by the Florida Bar in Criminal Trial (2008-2023) He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #boardcertifiedcriminaltrial
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[i] Make no mistake, there are plenty of plea agreements that are completely derailed by the court. Typically, when that happens the court makes its feeling known that the negotiated sentence or resolution does not fit the offense committed for whatever reason and rejects the plea bargain. The parties either must go back to the drawing board and negotiate a new plea agreement acceptable to the court or somehow convince the judge that the resolution is sound.
[ii] A defendant enjoys the following criminal constitutional rights as established by our founders. A defendant has the right to remain silent or the absolute right to be a witness in his own defense. The defendant has the right to make the government prove his guilt beyond and to the exclusion of a reasonable doubt to a jury of his peers. He is cloaked throughout the proceedings with the presumption of innocence and the government bears the heavy burden of proving the case. A defendant never has to prove his innocence.
[iii] Timothee, supra, also explains that there are two (2) competing, but acceptable ways to avoid the problem in the case. One way is to put the terms and conditions of the “substantial assistance agreement” on the record and then have the record sealed; the other is to have the state prepare a written “substantial assistance agreement” that is executed by the parties (outlining the terms and conditions of the “substantial assistance agreement”), and kept in the possession of the state. Id.
[v] The last reason is upon agreement of the prosecutor and judge. There are very, very limited circumstances were all the parties agree that the plea was ill-advised for whatever reason and the plea should be unwound immediately.