The National Trial Lawyers
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Judges Should Be Involved in Plea Negotiations

Judges Should Be Involved In Plea NegotiationsThe criminal justice system here in Orlando, and throughout Florida, runs on a well established balance of power between the prosecutors, the judge, and the criminal defense attorney. The actions of these players are controlled by the rules laid out in Florida’s Constitution, and the United States Constitution.

But this balance of power can be swayed by the behavior of the judge. For example, if a judge gets too involved in plea negotiations (like telling a defendant “you should take this plea offer”, or “this is the best offer you’re ever going to get on this case”, etc), such bench commentary may only serve to intimidate a citizen into taking a plea for something they didn’t do.

On the other side of this coin, many Florida jurisdictions have judges whose courtrooms and dockets are out of control because the judge refuses to reign in their overzealous prosecutors For example, if a judge refuses to participate in plea negotiations, their dockets may be manipulated by prosecutors who make unreasonable plea offers–knowing that their unreasonableness will not be checked by the judge.

Citizen’s accused of a crime should not be forced into a jury trial merely because the judge refuses to participate in a legitimate judicial function–sentencing. Judges may sentence on a plea, or they may sentence after a guilty verdict, but citizens who wish to enter a plea like to know what they’re getting before doing so, and some judges simply refuse to say. When a citizen’s entire future is left up to a stranger in a black robe, they have every right to question why this paid public servant refuses to participate in the process.

Well, our appellate court system has had plenty to say about the nature of judicial participation in plea negotiations. One of the landmark decisions is a First District Court of Appeals decision in Ha v. State, 56 So.3d 834 (Fla. 1st DCA 2011). The defendant in Ha alleged that the judge exceeded his plea negotiation powers, thus forcing the defendant into an involuntary plea. The appeals court allowed the defendant to withdraw the plea and start over, here’s why.

Our Florida Supreme Court in State v. Warner, 762 So.2d 507 (Fla.2000) held that judges should limit their participation in the bargaining process so as “to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” When it comes to Florida’s Supreme Court–words have meaning. “To minimize” participation in plea negotiations DOES NOT MEAN “don’t do it”. Unfortunately, some judges are either too lazy or too afraid to give even this small amount of participation. From the perspective of the accused citizen, it seems like the judge is simply playing games by “not revealing” what his/her sentence will be upon entry of a plea to the bench.

Here’s the rules for judges in plea negotiations, according to Ha v. State.

FIRST: the trial judge may participate in plea negotiations only at the request of the party (judge may NOT initiate negotiations)

SECOND: the trial judge may state on the record what he/she thinks is an appropriate sentence, but the judge MUST QUALIFY this by noting the judge’s plea opinion is based upon the facts currently known to the judge (thus, this gives the judge wiggle room if a jury trial reveals harsher facts and the judge gives a harsher sentence after trial–this is permissible at times and not considered ‘punishment’ for going to trial)

THIRD: a judge may not imply that a defendant would receive a different sentence depending upon future choices, meaning, a judge may not say, “I’ll give you one year probation if you plea now, but I’ll give you one year jail if you lose at trial”. A judge may be able to do this, but the judge would have to say something to the effect that “based upon the facts I have in front of me, I will give you one year probation, but if I hear different facts at trial, I cannot be bound to my current sentence determination and may impose a greater sentence later”. Yes, the word games are a bit crazy, but necessary under the law.

FOURTH: all plea discussions must be made on the record. This seems crazy to me, as I’ve spent many years defending cases in Orange County and Seminole County, hashing out deals in the judge’s chambers–off the record. Well, can’t do plea negotiations off the record anymore (still do, but we’re not supposed to).

BOTTOM LINE: we taxpayers pay our judges to protect the Constitution, and sentence our citizens fairly. Sentencing has become less fair recently with the advent of legislative minimum mandatory sentences, and overzealous prosecutors. Judges that actively participate in plea bargaining help restore our system’s balance of power. Hopefully, more judges will continue to do what they’re paid to do….

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