State v. Warner

• Decision Date: 22 June 2000
• Docket Number: No. SC94842.,SC94842.
• Citation: 762 So.2d 507
• Parties: STATE of Florida, Petitioner, v. John WARNER, Respondent.
• Court: Florida Supreme Court

762 So.2d 507

STATE of Florida, Petitioner, v. John WARNER, Respondent.

No. SC94842.

Supreme Court of Florida.

June 22, 2000.

Robert A. Butterworth, Attorney General, Celia A. Terenzio, Bureau Chief, Myra J. Fried, and Joseph A. Tringali, Assistant Attorneys General, West Palm Beach, FL, for petitioner.

Richard L. Jorandby, Public Defender, Susan D. Cline, and David J. McPherrin, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, FL, for respondent.

LEWIS, J.

We have for review State v. Warner, 721 So.2d 767 (Fla. 4th DCA 1998) ("Warner"), which expressly and directly conflicts with the Fifth District's en banc opinion in State v. Gitto, 731 So.2d 686 (Fla. 5th DCA 1998),review denied, 728 So.2d 204 (Fla.1998), and review denied, 728 So.2d 202 (Fla.1998)("Gitto"). In Warner, the Fourth District held—contrary to the holding in Gitto¹—that a sentence is not per se invalid where the trial court, over the State's objection, advises a defendant regarding what sentence would be imposed pursuant to a plea of guilty, and accepts the defendant's subsequent guilty plea.² This Court has jurisdiction. See Art. V, § 3(b)(3), Fla. Const.

The respondent, Warner, was charged by information with one felony and two misdemeanors involving alcohol-related driving offenses. The trial court ordered a pre-plea presentence investigation ("PSI"). At a hearing on July 10, 1997, the Assistant State Attorney indicated to the court that the State would like to review the PSI, and leave the matter on "for the trial date—most likely for a change of plea." Respondent's counsel stated, "You offered us an open plea, possibly. They want to get the victim's input and the background on the family. We did a pre-plea PSI. I agree with the State that we should review this." The court indicated "We'll leave it on for the 21st (of July)." Respondent's counsel responded, "Then we'll plea it out."

At the subsequent hearing on July 21, respondent's counsel made the following statement:

The Court at sidebar the other day warned us what the Court would consider for plea, and we would like to go forward with it.

It was two years house arrest. Special condition of house arrest 364 days in Broward County Jail. Followed by three years of probation.

The State agreed that this statement accurately reflected the trial court's representation regarding the sentence to be imposed pursuant to Warner's guilty plea. After accepting Warner's plea, the trial court sentenced him as indicated, over the State's objection that the trial court, in imposing the downward departure sentence (based upon proffered information, rather than actual evidence), relied on grounds which were either invalid or not supported by record evidence.

The State then appealed. The Fourth District reversed, finding one of the three stated departure reasons to be invalid, and the other two to be lacking record support. See 721 So.2d at 769. In so doing, however, the appellate court first rejected the State's contention that the sentence was invalid in the first instance because the trial court, over the State's objection, had violated the separation of powers doctrine by making a pre-plea sentencing pronouncement, and thereafter accepting Warner's guilty plea:

We ... respectfully disagree with Gitto to the extent that it holds that a court can never, over the state's objection, advise a defendant of the sentence it would impose if the defendant pleads guilty to the charges filed by the state. Our holding is limited to cases in which the plea is to the charge determined by the prosecutor. The court cannot, over the state's objection, reduce the charge and accept a plea to the reduced charge. We note that Florida Rules of Criminal Procedure 3.170(h) requires the state's consent to a plea to lesser charges; however, rule 3.170 is silent on whether the state must consent where the plea is to the charges.

721 So.2d at 769 (footnote omitted).

The topic addressed by this petition for discretionary review is not new. Over two decades ago, this Court, in Davis v. State, 308 So.2d 27 (Fla.1975), touched upon the role of the trial judge in the plea bargaining process:

As observed in [Brown v. State, 245 So.2d 41, 44 (Fla.1971)], we are well aware of the changing attitudes of those concerned with criminal justice on the question of "plea bargaining." This change is reflected in the new rule relating to Plea Discussions and Agreements, which rule finds its genesis in Sections 3.1-3.4, incl., ABA Standards Relating To Pleas of Guilty (1968). As we stated in Brown, supra, a judge is never bound in sentencing by the negotiations which occur between the prosecuting attorney and the defense counsel. Furthermore, it is true that plea discussions in which the trial judge is involved have been categorized as "delicate" and that the American Bar Association in its Standards for Criminal Justice Relating to Guilty Pleas has concluded that the trial judge should not participate in such plea discussions until after a tentative plea agreement has been entered into between counsel for the parties. Nevertheless, we refrain from condemning the practice per se since we are confident that the trial judges of this state will take all necessary precautions to assure that defendants' rights are protected by appropriate safeguards. Should a trial judge later decide that a sentence should not be as lenient as he had contemplated earlier, he must be liberal in permitting a withdrawal of the guilty plea.

308 So.2d at 29 (footnotes omitted).³ While we expressed, in Davis, our trust that the trial judges of this state, when involved in the plea bargaining process, "will take all necessary precautions to assure that defendants' rights are protected by appropriate safeguards," the present controversy has distilled the apparent need to delineate certain minimum safeguards (not otherwise specified in rule 3.171(d),⁴ Florida Rules of Criminal Procedure) which will, in the future, apply to such participation. As observed by Justice Sanders in State v. Wakefield, 130 Wash.2d 464, 925 P.2d 183, n. 1 (1996) (Sanders, J., concurring in part, dissenting in part), "[p]articipation by a judge in plea negotiations, while disfavored and rare, is not unheard of." Not surprisingly, the extent to which a trial court may, or should, interject itself into the plea bargaining arena has been the subject of spirited debate. Such participation—whether condemned⁵ or condoned⁶—has always been approached with caution.

Many of the concerns repeatedly expressed (such as the defendant's perception of coercion, the defendant's fear of reprisal if a plea offer is rejected, the undermined use of presentence investigation reports and victim input, the illusory nature of a bargained-for sentence, and— where the bartered-for sentence will not be imposed—the potential "discrediting" of a subsequent assertion of innocence upon withdrawal of the guilty plea) are inherent in the plea bargaining model itself, but may be magnified when the powerful "neutral" in the system becomes embroiled in the negotiation process. Cf. People v. Jensen, 4 Cal.App.4th 978, 983-984, 6 Cal. Rptr.2d 201 (1992)(outlining concerns involved when trial court participates in plea bargaining); see generally Robert M. Sussman, Note, Restructuring the Plea Bargain, 82 Yale L.J. 286, 287 (observing that "[j]udicial participation in the process —at least before the defendant tenders his plea—has been viewed with nearly universal distaste"); Peter A. Whitman, Recent Developments, Judicial Plea Bargaining, 19 Stan.L.Rev. 1082 (1967) (analyzing criticisms of judicial plea bargaining). Other concerns (such as a perception that the trial court will be unable to rule fairly on the voluntariness of a bargain it has helped to induce, or a perception of "unseemliness" potentially evoked by judicial plea bargaining) appear to be unique to judicial involvement beyond that contemplated by rule 3.171, Florida Rules of Criminal Procedure.

In certain jurisdictions, this has lead to an express prohibition of judicial plea bargaining. Rule 11(e), Federal Rules of Criminal Procedure ("Plea Agreement Procedure"), provides:

(1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following:

(A) move for dismissal of other charges; or

(B) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or

(C) agree that a specific sentence is the appropriate disposition of the case.

The court shall not participate in any such discussions.

(Emphasis supplied.) Similarly, the ABA's plea bargain standard—while not containing an outright proscription against judicial participation—provides that the judge "should not ordinarily participate in plea negotiation discussions among the parties." ABA Standards for Criminal Justice: Pleas of Guilty, Standard 14-3.3(d) (3d ed.1999) (discussing responsibility of judges). Under the ABA standard, at the request of the parties, "a judge may be presented with a proposed plea agreement negotiated by the parties and may indicate whether the court would accept the terms as proposed and, if relevant, indicate what sentence would be imposed." Id.

As one commentator has explained, this is a change from earlier versions of the ABA standard, which originally provided that "[t]he trial judge should not participate in plea discussions." Standards Relating to Pleas of Guilty § 3.3(a) (Supp. 1968). Later (in the second edition), the standard provided:

When the parties are unable to reach a plea agreement, if the defendant's counsel and prose

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