FLORIDA FEDERAL PROSECUTORS DROP WAIVER OF COLLATERAL ATTACK & POST CONVICTION PROCESS IN TAMPA BAY PLEA AGREEMENTS

Federal plea agreements in the Middle District of Florida have long contained language which restricts a Defendant’s rights to appeal his sentence often rankling Clearwater Federal Defense Lawyers. Recently this law blog noted that the Florida Bar Association was in the process of finding plea waivers restricting collateral attack and post-conviction process could amount to unethical prosecutorial misconduct.

The United States Attorney’s Office has sent a letter acknowledging that the plea agreement wording must be changed to the evolving view of the Florida Bar as to what constitutes unethical conduct for Federal Prosecutors and Defense Lawyers. Though you’d think that the very fact each plea agreement contains the same boiler plate language would be sufficient to establish the unfair advantage Federal Prosecutors possess in the Federal Criminal Justice System in the Middle District of Florida 
The previous plea agreement wording with the new wording for future Plea Agreements in Federal Court in the Middle District of Florida are as follows:

Tall and narrow painting with a tree and man with admiration for the lotus around him, so we admire the Florida Bar for forcing the U.S. Attorney's office to change it's plea agreement language in the Middle District of Florida in Tampa Bay, Clearwater, Largo & St. Petersburg Florida
Maoshu Appreciate Lotus

Defendant’s Waiver of Right to Appeal and Right to Collaterally Challenge the Sentence.The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant’s sentence or to challenge it collaterally on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant’s applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a). 

We are eliminating the references to collateral challenges to the sentence. The new standard appellate waiver will read as follows: 

Defendant’s Waiver of Right to Appeal the Sentence.  The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant’s sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant’s applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a).

 As you can see the language the U.S. Attorney’s office will shove down the throats of federal defendants still effectively eliminates most possible appeals. Until the Florida Bar takes a long look at the underlying notion of a lack of fairness from disproportionate bargaining power between parties in federal plea agreement negotiations, the rule of thumb from your favorite Clearwater Criminal Defense Attorney is for Federal Defendants to understand  before a change of plea to guilty that successful appeals from pleas in federal court are rare.