Plea Bargains in Florida: How They Work and What a Judge Must Ask

What the rules allow

Florida Rule of Criminal Procedure 3.171 says the prosecutor and the defense are encouraged to discuss and agree on pleas, while the ultimate responsibility for the sentence rests with the trial judge. In exchange for a plea of guilty or no contest to the charge or to a lesser or related offense, a prosecutor may agree to:

• abandon other charges;
• recommend a sentence, or not oppose the defendant’s request for one, on the understanding that the judge is not bound by it; or
• a specific sentence.

The prosecutor may consult the victim and the investigating officer and tell the judge their views, and must tell the judge all material facts known about the offense and the defendant before a plea is accepted.

The defense lawyer’s duties

The same rule says defense counsel may not conclude a plea agreement without the client’s full and complete consent, and must be certain that the decision to plead is made by the defendant. Counsel must advise the defendant of all plea offers and of all pertinent matters bearing on the choice, including the likely results and any alternatives.

What the judge must do before accepting a plea

Under Florida Rule of Criminal Procedure 3.172, the judge must determine that the plea is voluntary and that there is a factual basis for it. The judge places the defendant under oath, speaks to the defendant personally, and confirms on the record that the defendant understands:

• the nature of the charge, the maximum possible penalty, and any mandatory minimum;
• the right to a lawyer, including an appointed one;
• the right to plead not guilty, to a jury trial, to compel and confront witnesses, and not to testify;
• that a plea of guilty, or of no contest without an express reservation, gives up the right to appeal matters relating to the judgment;
• that there will be no trial;
• the complete terms of the plea agreement;
• that for a person who is not a U.S. citizen the plea may lead to deportation or removal, whether or not adjudication is withheld; and
• that if the offense carries a mandatory driver license suspension or revocation, the plea provides the basis for it.

The judge must also find that the defendant either acknowledges guilt or believes the plea to be in their best interest while maintaining innocence.

When an agreement becomes binding

Rule 3.172 says no plea offer or negotiation is binding until the judge formally accepts it after making the required inquiries. Until then either side may withdraw it without giving a reason. If the judge does not agree with a negotiated plea, the plea may be withdrawn.

Withdrawing a plea

• Before sentence. Under Rule 3.170 the court may allow a plea of guilty or no contest to be withdrawn, and must allow it on good cause.
• After sentence. A motion to withdraw the plea may be filed within 30 days after the sentence is rendered, and only on the limited grounds the appellate rules list.
• If the defendant does not keep the agreement. The State may move to vacate the plea and sentence within 60 days of the noncompliance, and the court must find substantial noncompliance.

A plea that was offered and later withdrawn cannot be used as evidence against the person.

Important exceptions

• DUI. Section 316.656 bars a judge from accepting a plea to a lesser offense when a breath or blood test showed 0.15 or more. See can a DUI be reduced to reckless driving?
• Mandatory minimums and the scoresheet. An agreement operates inside the sentencing law. See felony charges in Florida.
• Withholding adjudication. Whether a judge can withhold adjudication as part of a plea depends on the offense.

Common questions

What is the difference between guilty and no contest?

A plea of no contest (nolo contendere) does not contest the charge, and it needs the court’s consent. Many Florida statutes, including the ones on prior convictions, treat a no contest plea the same as a guilty plea.

Does the judge have to accept the deal?

No. The rule gives the judge the final responsibility for the sentence.

Can I change my mind after pleading?

Only in the situations described above. After sentencing the grounds are narrow and the deadline is 30 days.

When to speak with an attorney

A plea decides the case and can affect a record, a license, immigration status, and future charges. A licensed Florida attorney can explain an offer and its consequences. A person who cannot afford a lawyer can ask the court to appoint the public defender. More guides are on the Arrest and Court Process topic page.