This blog recently noted that the Florida Bar is set to release an ethics opinion that will re-define some appeal waiver provisions in plea agreements as unethical, something every Defendant and most Criminal Defense Lawyers in Clearwater should applaud. Now a Federal Judge has refused to accept a plea waiver that limits a Defendant’s right to appeal unless the specific facts of a case warrant a waiver provision being included.
Here are excerpts from the Judge’s opinion:

Marat needed a fair plea bargain with a St. Petersburg Criminal Defense Lawyer in Largo, Clearwater and Tampa Bay Florida
Fair  Plea Bargains Not a Bath

The pervasive waiver of individual rights has fundamentally altered the function of the courts. The act of judging, once central to the determination of guilt or innocence, has been shunted to the margins. 

A defendant’s “guilt” is, more often than not, preordained by the grand jury’s indictment. To the extent judges actually participate in the criminal process, the push is to relegate us to approving or disapproving proposed plea bargains and, unless the plea contains a negotiated sentence, determining an appropriate sentence.
A rational defendant, even if innocent, may plead guilty to a lesser offense in order to minimize the risk of prosecution. Each plea bargain, therefore, and its concomitant prioritization of efficiency at the expense of the individual exercise of constitutional rights or the exercise of judicial responsibility, requires close scrutiny. 

In the wake of the Supreme Court’s holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247 (2005), no circuit court has revisited the enforceability of appellate waivers. Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment…
The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline. That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly. Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society.

As much as anything it’s clear that the Judge is discouraged by the disproportionate power of prosecutors in a system that has become unhinged, where the a defendant’s guilt is “preordained by the grand jury’s indictment,” and where  “…the push is to relegate us to approving or disapproving proposed plead bargains….” Florida Judges should take this Federal Judge’s opinion to heart by taking power into their own hands away from overzealous prosecutors and shaking the system by delivering fair and just sentences in every case before them. At least one Clearwater Criminal Defense Attorney thinks it’s Judges not prosecutors who should be sentencing defendants.


The U.S. Supreme Court has opened a Pandora’s Box for plea negotiations in Tampa Bay and Pinellas Courts in two new opinions, which for the first time allow defendants to appeal miscommunication of previous plea offers which were not accepted in a timely manner. The decisions make Court watchers such as your favorite Clearwater Criminal Defense Attorney speculate how far the Court will go in allowing plea agreements to be litigated in the future, but should make the plea process more open, formal and visible. This is needed because as the Court notes in passing, “ours has become a system of pleas, not a system of trials,”which indeed is a very dangerous thing according to the L.A. Times in A system of Plea Bargains.

The Court held in Frye: “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” When there has been a failure to do so, a prejudice standard will be applied. But showing actual prejudice in fact may prove difficult as Defendants will be required to prove the following three things: 
1.”defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel”
2. “a reasonable probability the plea would have been entered without the prosecution canceling it,” 
3. “the trial court refusing to accept it.” 
If actual prejudice is established the remedy, is addressed in Lafler, can come in “at least one of two forms”:
1. Resentencing where “the sole advantage a defendant would have received under the plea is a lesser sentence”; and where “resentencing alone willnot be full redress for the constitutional injury,” 
2. the remedy “may be to require the prosecution to reoffer the plea proposal. 
3. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave theconviction undisturbed.”The Court’s reasoning is important. “Because ours ‘is for the most part a system of pleas, not a system of trials,’ it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. ‘To a large extent … horse trading [between prosecutor and defense counsel] determines who goes to jail andfor how long. That is what plea bargaining is. It is not some adjunct tothe criminal justice system; it is the criminal justice system.'”
 In support of its argument that plea negotiation is now the critical point ina criminal proceeding, the Court cites a law review article that notes“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes.”
These decisions raise many issues for Pinellas Criminal Defense Lawyers that will have to be resolved in practice and litigation. Among other things, prosecutors may change their practice of making formal plea offers or may be required by Judges in Tampa Bay, Pinellas and Clearwater to make all plea offers on the record in open court for transparency. Further, priors records of Defendants based on plea agreements may be challenged based on the facts and circumstances of the plea. All great news for Clearwater Defense Lawyers.
Let the Buyer beware of Plea Bargains in Open Court in Pinellas County.
Pinellas Courtroom with a Connoisseur Plea Bargaining
Norman Rockwell, The Connoisseur,  1962


Federal Criminal Law attorneys often lament the lack of real bargaining power in plea agreements between the Government and Defendants in the Middle District of Florida – and in the case below the Southern District of Florida – often resulting in lopsided plea agreements with bloated provisions which require Defendants to waive their right to appeal among other unsavory actions. Usually, the result is catastrophic for an effective federal appeal should there be any subsequent sentencing issues in need of resoulution. In the case below the waiver of appeal in a Plea Agreement bites the Governments hand allowing the 11the Court of Appeals to reject the Government’s attempt to increase the Defendant’s sentence upon appeal.

United States v. Arthur Smith, No. 10–15044 

( September 7, 2011) Appeal from the United States District Court for the Southern District of Florida Panel: Tjoflat, Carnes, and Fay, Circuit Judges. Carnes, Circuit Judge: Affirmed Writing that “sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants,” the Eleventh Circuit yesterday refused to allow the government to withdraw its previously filed brief – in which it had argued that appellant Smith’s appeal waiver applied to preclude relief – and refused the government’s request to vacate the sentence and remand for resentencing under the Court’s recent decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The Court held hold that claims under the Fair Sentencing Act of 2010, like any other type of sentence claim, can be waived by a knowing and voluntary appeal waiver, noting that “a waiver would be worthless if it covered only issues that lacked merit.” Because it found that Appellant Smith’s appeal waiver was knowing and voluntary, it affirmed his sentence. The full text of the decision can be found here: 

Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida