There is a popular myth out there amongst people serving time in Florida that you can file a motion and renegotiate the plea bargained for sentence. The idea is if the sentence is too harsh, too long, or it is not to the defendant’s liking, then just hire a “high priced” attorney and they will be able to file a special motion to get the sentence reduced. Unfortunately, this is a fairytale and not how it works but it does not stop inmates from continually trying it.[i]
While there are a couple of legal mechanisms to potentially revisit the sentence, once a defendant has accepted a plea bargain from the prosecution, he does not get to go back and renegotiate the terms and conditions of the original plea at some later time.[ii] If, on the other hand, the sentence is illegal, then the defendant can file a specific motion to correct the illegality.[iii] Usually, once a defendant pleads and the court accepts and sentences the defendant, that is the end of the plea process. Done.
Fla. R. Crim. P. 3.171 and 3.172 controls plea agreements in criminal court.
“Caveat emptor” which translates from Latin to “let the buyer beware.”[iv] It has come to mean that when one enters into a contract one needs to fully understand the terms and conditions of the agreement. It originally meant that the buyer alone was responsible for checking the quality of the merchandise before the purchase is made.
In other words, speak to your attorney and get answers. Demand answers from them. Do not allow them to provide wishy-washy answers or gloss over your rights. Make them do their job. Make the attorneys put their answers in writing, in correspondence, in letters, in emails, or on the record with the judge. DO NOT LET THEM IGNORE THIS REQUIREMENT. If you do not understand something, then speak up. It may be the only chance you get at this.
“Pacta sunt servanda” is Latin for “agreements must be kept.”[v] Once an agreement is entered, both sides must abide by the terms and conditions of the agreement – – otherwise, what was the purpose. In general, plea bargains are bilateral contracts. As contracts, the agreements are governed by both criminal law principles and existing contract law. The Third District succinctly explained it in Dozier, supra, when it wrote, “A plea bargain is, of course, a contract and is governed by contract principles. See Clark v. State, 651 So.2d 1309, 1310 (Fla. 3d DCA 1995).[vi] … In order for there to be a plea agreement, there must be a meeting of the minds between the contracting parties — the State and the defendant — and the agreement must be approved by the trial court. …”
Here is the cold, hard truth- – once a defendant has plead and the court sentenced him, it is extremely difficult (if next to impossible) to withdraw the plea. This is by design. Imagine the chaos that would ensue if a defendant simply did not like his plea and moved to withdraw willy-nilly. The dockets for the criminal courts would be end up being a hot mess.
Normally, a defendant can immediately appeal the judgement and sentence of the court.[vii] In 99.9 per cent of cases, the judgement and sentence imposed by the plea negotiations is completely legal and wastes the appeal as pointless. In this situation, if the defendant believes that the plea was not knowingly, voluntarily, or intelligently entered into, then the defendant must move to withdraw the plea within 30 days of the plea and demonstrate “manifest injustice” (whatever that means). If the court denies the motion, then the defendant must appeal the denial of the motion to withdraw the plea. The motion and appeal process are arcane and complicated.
Let me say again, however, once a person has accepted a plea agreement and then the judge has accepted it and sentenced the person, it is next to impossible to unwind the plea bargain. For the vast majority of cases, there is no special motion that one can file to get it back to square one and undo the plea. There is no magic motion (pill) to fix the problem. The only way to avoid a bad plea deal is to take your chances at trial.
There are many desperate people in jail and prison that will believe anything that another uninformed inmate tells them. Anything. There are too many of these urban myths to list here, but this is one of those myths.
The decision to plead guilty must be undertaken with the utmost seriousness. The defendant must weigh the pros and cons of entering into or rejecting a proposed agreement. Some of the basic considerations are – – the penalties for charges, the penalties for losing at trial, the current score on the defendant’s scoresheet, the evidence for/against the defendant, the prospects of winning (or potentially securing a lessor included charge and the penalty that goes along with that charge), the attorney representing the defendant, the prosecuting attorney, the presiding judge, socio-economic and family issues, the defendant’s personal tolerance for being in the system, and the mental health issues of shame, stress, depression, and anxiety. Maybe even prayer. And if the offer is rejected, is there a counteroffer in terms of charge and sentence going to be made to the State?[viii] All those factors are considered in one manner or another as the defendant works through his decision. Once a plea is accepted by the court and the defendant sentenced, the matter is closed (and there is no do over later because the defendant now has buyer’s remorse …etc.) This is not how it works unfortunately.
If you or a loved one has already entered a plea, there may be nothing that a competent criminal defense attorney can do to correct the problem if you are not satisfied with the plea. Nevertheless, this should not stop you from contacting a competent criminal defense attorney to looking into the issue.
Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). 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. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog
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No. 21-024 No Magic Pill
[i] Over the years, I have had many people, ignorant of the process, contact my office and request my services to appeal the sentence believing that there is a magic motion to get a better sentence. These individuals are often dismayed by the truth that that is not how it works. Many become frustrated with my explanation and think that I am misleading them. I truly wish there was a magic pill (motion) to correct an unlikeable sentence, but there is not. The only way to avoid a bad plea deal is to take your chances at trial.
[ii] There are ideas for bills in the Legislature and ideas for new rules that are kicking around, but as it stands there is nothing that allows a defendant to simply revisit his sentence because he does not like the sentence.
[iii] There is also a motion to modify the sentence which can be filed within 60 days of the rendition of the sentence, but unless there is some wonderful reason to file this motion or the prosecutor has agreed to the motion, the motion has little chance of success in front of the judge that just rendered the sentence. Admittedly, there are always crazy outlier examples from time to time, but it is not the norm. See Fla. R. Crim. P. 3.800 (a) (illegal sentence), (b) (illegal sentence while pending direct appeal), and (c) (modify sentence).
[vi] Dozier v. State, 881 So.2d 662, 663 (Fla. 3d DCA 2004). See also Madrigal v. State, 545 So.2d 392, 395 (Fla. 3d DCA 1989) (referring to the plea bargain as a “private contract model” citing to Brown v. State, 367 So.2d 616 (Fla.1979); and Bell v. State, 453 So.2d 478 (Fla. 2d DCA 1984)).
[vii] See Fla. R. App. P. 9.140(2)(A)(ii)(c). See §924.05, Fla. Stat. (direct appeal); §924.06, Fla. Stat. (appeals by defendants)
[viii] In contracts, a counteroffer automatically rejects an offer that was made by the other party. So, if the other side says, “we’ll sell you 100 widgets for $100.” And you respond, “how about $75?” That is a counteroffer, and it destroys the original offer. So be careful how you word offers, and counter offers.