Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Plea bargaining is the process by which the defendant and the defense attorney discuss the case with the state with an eye towards negotiating a settlement with a written plea agreement that the judge will ratify. This is something that in some cases the judge will be involved in, but this is becoming increasingly rare. Judges are reluctant to get into plea bargaining because of a body of case law that says if a judge is not careful the things that they say, if they become involved in plea bargaining, can result in a reversal. Judges are very concerned about reversals and therefore tend to stay out of plea bargaining as much as possible. The older judges with more experience in criminal law still do pre-trial conferences where they will listen to both sides give a mini-presentation of evidence.

Then they give an off the record indication of what they will do. However, the proper way to do so is to follow an entire line of cases that says that it should be on the record. There should be a request for the judge to participate, and the judge has to carefully go through several different steps in order to do so. However, at its most basic element, plea bargaining is the process by which the state and the defense negotiate regarding whether or not charges are substituted, the number of charges filed, any reductions and any possible sentencing should take place. After this has been established, then any such agreement has to be ratified by the judge. The judge either accepts or rejects the plea bargain.

Generally speaking with experienced criminal defense lawyers and prosecutors, they are going to stay within the parameters of what the judge finds acceptable.

How Does Plea Bargaining Work In Florida?

The first act of plea bargaining for the defense is to set the case for trial no matter how bad the evidence will be against the defendant. Most people have a false belief that the first thing they should do is run to the courthouse on their first court date and throw themselves upon the mercy of the court. This is foolish and somewhat dangerous, and this is the number one reason why people suffer courthouse surprise in misdemeanor cases. For example, someone may be accused of a first offense petty theft, possession of marijuana, or even a DUI case. They do all this research online, and they also tend to talk to friends and family members who may have had similar charges in other places.

This causes a great deal of pain for people, because they rely heavily on the advice of friends and family members who have no experience with that particular prosecutor or judge, and with that specific case involving a definite fact pattern. The fact pattern in a case can contain hidden landmines. You can think of Florida criminal law as a mine field. If one is going to walk through a minefield, the best course of action is to hire an expert attorney to get you through the mine field. Any experienced attorney in criminal law is going to file a written plea of not guilty and a notice of discovery. They should set the case for a jury trial and be fully aware of the fact that over ninety-nine percent of all cases do not go to trial.

The reason cases are set for trial and why discovery is sought is so there can be an evaluation of the strengths and weaknesses of each element of all charges. If someone is charged with, for example, three counts of three different types of crimes, each one of those different counts is going to have a set of elements that the state will have to prove. For example, take battery as an example. The state would have to prove that there was intentional touching that was either harmful or offensive. So we have two elements but buried within those elements are additional parts. The touching has to be intentional. Was it intentional, or was it accidental?

When we look at how to plea bargain cases, knowing the strength and weakness of each individual part, the sub-part of each element is critical, because strength of the case is one, if not the most important factors that determine whether or not charges are voluntarily dismissed, reduced to a lesser charge, substituted with another charge, or otherwise results in a favorable outcome for the defendant. In felony cases, you have a point system, and if points are above a certain number, then the only way the judge can impose a nonprison sentence is if one of fourteen legal grounds are specifically found and proven by the defense.

Everybody is aware that the state has the burden to prove guilty beyond a reasonable doubt and to the exclusion of that doubt. When it comes to settling cases, the plea bargaining process, and sentencing, it is the defense that must show there is the burden of proof by a much lower level of evidence. This is what is known as a preponderance of the evidence that a particular ground of mitigation applies to. One of the biggest mistakes that people make when it comes to the how does plea bargaining work question, is to send letters to the judge. When an unrepresented person or a represented person sends a letter to the judge, the judge will not even read it.

The judge is prohibited from reading the letter and sends a copy of the letter to both sides. These results in people trying to help their case by sending information directly to the prosecutor which results in additional charges being filed, or increases the penalties that they will suffer. When someone is guilty and they want to get it over as fast as they possibly can with the lease amount of pain that is precisely the most important time to hire an experienced criminal defense attorney. The prosecutor knows without the slightest bit of doubt that the person they are speaking with if it is someone unrepresented, does not know how to try a case, has never tried a case, and does not know a single thing about the rules of evidence.

If the prosecutor were to go up against that person in the court of law, it would be an irritatingly long and difficult case simply due to the prose litigant’s ignorance. When the verdict comes back, it is going to be unfavorable, and that same prosecutor is going to be asking for maximum time. Therefore, direct negotiation between defendants and prosecutors will never produce the best plea bargains. In fact, they often try to hoodwink people with fake plea bargains often under disguises of other diversion programs.

I addressed this scam of diversion programs in an earlier article, but just to sum it up, I would put it like this. Diversion programs require people to jump through way too many hoops. They have way too many opportunities for someone to violate the terms and conditions, and if someone does violate the terms and conditions they end up with a criminal history and a jail sentence. Diversion programs should never be accepted by pro se defendants, and should always be reviewed first by an experienced litigator. Just last week somebody turned down a diversion program that would have had them jumping through hoops for a year. This morning that case was dismissed.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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