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  • Writer's pictureAttorney Joseph Soler

What is an open plea (AKA a "straight up plea") in Florida?

***This is meant to be informational only and not legal advice. Be sure to speak to an attorney about your unique situation. Do not rely on anything said here to make a decision in your case***

In Sarasota, a defendant facing criminal charges generally has several options. The first, and most common, is to accept the plea offer that the State (prosecutor) makes. If you have hired an attorney, the attorney will likely try to get a better offer by negotiating with the State; this is what is referred to as "plea bargaining". If you are unwilling to accept the State's offer before or after plea negotiations, then you are left with two final options. The most common of these options is taking your case to trial and letting a jury decide your guilt or innocence. A less common, but available option, is to open plea in front of the judge.

An open plea is also known as a "straight up plea" or simply as "throwing oneself on the mercy of the Court." When you open plea you are essentially putting the entire outcome of the case into the judge's hands. The judge will listen to argument from your attorney and from the prosecutor. You will have the opportunity to speak to the judge and call friends, family or co-workers, if you like.

After listening to the defense and the prosecutor, the judge will rule. The judge can sentence you to anything from the minimum sentence allowed by law up to the maximum sentence allowed by law. Open pleas can be very risky because the judge can essentially do whatever he or she wants within the confines of the law.

Should I open plea?

An open plea is usually an option of last resort. It is usually preferable to try to work out a deal with the State by negotiating for a better offer. This is because if the State is in agreement with the defense there is more certainty as to the outcome—you will usually know before going to court what sentence you will receive.

Obviously, you only want to open plea to a judge that likes open pleas! Some judges despise them. Others like them because (among many reasons) it quickly clears a case off their docket, freeing up their schedule.

It is wise to do a little research about your judge to try to determine how your judge has ruled in similar circumstances. Judges, like anyone else, can feel strongly about certain issues. You would obviously not open plea a DUI before a judge who is known to sentence the maximum for DUI's. On the other hand, there are judges who tend to favor rehabilitation over incarceration. If you want to avoid jail with a rehab program, and the state is demanding jail, you may want to consider an open plea before the judge.

What NOT to do at an open plea?

An open plea is a time to express humility and remorse. It is NOT the time to complain to the judge about cops, the prosecutor, or how the system has treated you unfairly. The judge will be listening to your argument and the argument of the prosecutor, your job is to convince the judge to rule in your favor--not to convince him or her that the system is broken.

Do not dress poorly. Be sure to show respect to the judge by dressing in your best for court. Also, you do not want to appear in any way disrespectful. Be sure to show respect, even while the prosecutor is speaking.

What the law firm of Soler & Simon can do for you

It is extremely important to be thoroughly prepared for an open plea. Open pleas can be practiced. The more you prepare and practice, the more comfortable you will feel in front of the judge.

It is important that the substance of what you plan on saying to the judge be reviewed by your attorney. Believe it or not, people hurt their cases quite frequently by saying things that angers the judge.

As mentioned above, there are some judges you would absolutely not open plea in front of. There are others who may be sympathetic to you and your situation. We can point you in the right direction.

Last, but not least, we can thoroughly analyze your case to determine if an open plea is your best course of action.

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