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The Risks Of Pleading Open To The Court

It is no surprise that most criminal cases are disposed of by way of plea negotiations. That is, the defense attorney and the prosecutor will agree upon a resolution instead of taking a case to trial. In most instances, a plea is beneficial to both the state and the accused. The state doesn't need to spend time and resources bringing their witnesses in for trial, and the accused doesn't have to risk the maximum penalty if found guilty. I have long believed that a great criminal defense attorney should be both an excellent negotiator and a well-prepared trial lawyer.

However, sometimes prosecutors aren't willing to negotiate. Sometimes an accused's guidelines are too high or the state attorney is simply not interested in a plea. Sometimes it is in the accused's best interest to try and plead open to the court. A court plea is a plea offer extended by the court to the accused.

A true court plea should be the judge making an offer and then the accused deciding whether or not to accept. However, it sometimes doesn't work that way. Counties such as Broward and Palm Beach often require an accused to plead open to the court, meaning that the accused will first plead guilty or no contest, and then the judge will pronounce sentence. The problem is that once you plead guilty or no contest, the judge can legally sentence you anywhere between a minimum sentence and the statutory maximum.

An open plea to the court will often come with a defense motion for downward departure, where the defense asks the judge to sentence below guidelines. The defense may present evidence showing that the court can find statutory criteria upon which to sentence the accused below guidelines. Evidence is typically in the form of testimony or a report from a mental health professional showing that the accused is not at risk to re-offend, or that the criminal act was the result of some mental illness for which the accused should be treated (as opposed to incarcerated).

However, this effort recently backfired in Broward County. As you may recall from the news, a man was accused of severely beating his ex-wife inside the chambers of a Broward County judge back in April of 2011. During an in camera hearing about child support, the accused allegedly became angry with the judge's ruling and proceeded to punch his wife in the face, which caused a broken nose and other injuries. The accused was tackled and even Tasered by deputies. He was charged with aggravated battery.

After months of discovery, the accused's defense attorney thought it was best to plead open to the court. The attorney filed a motion for downward departure and presented hours of evidence, including testimony from family members of the accused, the accused himself, and mental health professionals suggesting that he may have been suffering from PTSD (he was a former Marine).

When it came time to sentence the accused, the judge imposed the maximum sentence. 15 years in state prison. The same maximum he could have received had he gone to trial and been found guilty.

I don't doubt the good intentions of the defense attorney, but sometimes an open plea can backfire. If faced with serious criminal charges, make sure you consider all of the risks before placing yourself at the mercy of the court.