Can the prosecution withdraw a plea offer after your client has accepted?

Criminal cases general resolve in one of two ways: plea bargain, or trial. Although all criminal defendants have a right to have their case decided by a jury of their peers, in practice, a vast majority of criminal cases resolve with a plea. A plea bargain can be “open” or “negotiated.” The former meaning that the Defendant enters a plea of “no contest” or “guilty,” and then asks the Court to determine what sentence he (or she) will receive. The latter involves negotiations between the Defendant’s attorney and the prosecution.

This blog post focuses on negotiated plea bargains generally, and specifically ask the question: can a prosecutor offer a plea to the defendant or his counsel, but then withdraw that offer prior to ratification by the court and formal disposition. The short answer is yes. If the Court has not accepted the terms of the agreement, the prosecution can in essence change it’s mind and revoke the offer at any time – even if the Defendant has already expressed his intention to accept the terms of the agreement.

Rule 3.172 authorizes the prosecution to withdraw a plea offer at any time before it is formally accepted by the trial judge. See Fla. R. Crim. P. 3.172(g). Arguably then, the prosecution could revoke a plea offer the morning of the plea conference or while standing at the podium waiting for the court to call the case. See also Shields v. State, 374 A. 2d 816 (Del. 1977) (finding that prosecutor could withdraw a plea offer, which Defendant had stated his intention to accept, weeks after the offer had been made and “accepted,” but prior to formal acceptance by the Court); State v. Reasbeck, 359 So. 2d 564 (Fla. 4th DCA 1978) (finding that prosecution could withdraw plea offer after Defendant had indicated his acceptance, but prior to formal ratification from the court).

The most common defense objections to a prosecutor withdrawing a plea previously offered sound in theories of contracts and ethics. As to the argument that the offer, once accepted by a Defendant is a binding contract, Courts have consistently held that an offer that has not yet been ratified by the court is merely “illusory” and technically cannot be accepted. In essence, the “offer” could not possibly be accepted by a Defendant, unless and until it is ratified by the court; accordingly it is really no offer at all. See Reasbeck, 359 So. 2d at 565; U.S. v. Thalman, 457 F. Supp. 307 (E.D. Wisc. 1978) (recognizing that to impart contract law into the world of criminal procedure would be an over simplification); State v. Collins, 265 S.E. 2d 172 (NC 1980) (emphasizing that there are more than two parties to the plea bargaining process, and accordingly the “contract” between the state and defendant is not really a contract at all).

As to the ethics argument, prosecutors have an overarching obligation to act in the interest of justice. See Florida Bar Rule 4-3.8 (“A prosecutor has a role of a minister of justice, not just an advocate.”). Clearly withdrawing a plea offer, after acceptance with an ill intent, vindictive motive, or otherwise unjust intention would be a violation of the Prosecutor’s ethical obligations and a potential bar complaint may be an appropriate remedy. However, so long as the actions of the prosecution are in the interest of justice, then they may lawfully, and ethically withdraw a plea bargain at any time before the court formally accepts the negotiation.

What is the practical take away? If the prosecution offers your client a bargain, and your client intends to accept – do it. Don’t waste too much time or dawdle in setting the matter down for a change of plea in front of the court. Remember he (or she) who giveth, can also taketh away.

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