JOHNNY W. STELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1979-01-24
No. 77-1231
LETTS and BERANEK, JJ., concur.
366 So. 2d 825 Florida District Court of Appeal, Fourth District (1979) Positive Treatment
Cited by 6 cases

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Holding

The court held that a defendant's unilateral offer to plead guilty, which is rejected by the state without counter-offer or negotiation, does not constitute plea bargaining under Fla.R.Crim.P. 3.172(h) and its admission into evidence is not reversible error, especially when not objected to below.


Headnotes

[1] A defendant's unilateral offer to plead guilty to a charge, which is neither initiated, approved, nor responded to by a representative of the state beyond rejection, does…

[2] For statements to be considered part of plea bargaining, there must be a mutual exchange where both the defendant and the state discuss criminal activities with a desire…

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Facts & Procedural History

The defendant was charged with felony possession of marijuana and tampering with a witness. He initiated a conversation with an officer, offering to p…

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Opinion of the Court
SCHWARTZ, ALAN R., Associate Judge.

SCHWARTZ, ALAN R., Associate Judge.

The defendant was charged in a two count information with felony possession of marijuana and tampering with a witness (the one against him in the marijuana case.) Two jury trials were conducted. At the first, the jury found the defendant guilty of the marijuana count, but hung on the other charge. At the second, the jury found the defendant guilty of the lesser included offense of attempted tampering. On this appeal from a judgment encompassing both convictions and sentences, the defendant primarily complains that, at both trials, evidence was introduced concerning what he characterizes as plea bargaining discussions, admitted, it is contended, in violation of Fla.R.Crim.P. 3.172(h).

The record demonstrates that after the defendant was taken into custody, he initiated a conversation with the arresting officer, Detective Wilson of the Palm Beach County Sheriff’s office, under which the defendant offered to plead guilty to an unrelated misdemeanor marijuana possession charge, if the officer would drop the felony charges. Stell made the offer, he told the detective, only because he wished to avoid the expense of hiring a lawyer to defend him; he adamantly denied the felony charges and told the detective that the State could not prove them anyway. The officer declined the “offer”, and made no counter-offers of his own. In each trial the detective described this conversation and a tape of it was played to the jury. In the first trial, the only objection raised was to the alleged inaudibility of the tape, which is not pressed on appeal; at the second trial, the defendant made no objection at all to the evidence now complained of. We cannot agree with the defendant’s present contention, thus raised for the first time on appeal, that this testimony constituted evidence, precluded by Rule 3.172(h), of plea negotiations between Stell and Wilson. •

While the courts’ views as to just what constitutes “plea bargaining” or “plea negotiations” have properly broadened to include the entire range of practical situations in which that process occurs in the real world, e. g., Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Herman, 544 F. 2d 791 (5th Cir. 1977); United States v. Geders, 566 F. 2d 1227 (5th Cir. 1978), it is, at a minimum, required that, as the terms “bargaining” and “negotiating” themselves imply, both the defendant and the State be actually involved. It cannot include a situation such as this one, in which the defendant, for his own reasons, makes a unilateral offer to enter a particular plea which is neither initiated, approved nor responded to — in any way but rejection — by a representative of the state. Our decision in Blake v. State, 332 So. 2d 676 (Fla. 4th DCA 1976) and that of the Third District in Wright v. State, 309 So. 2d 215 (Fla. 3rd DCA 1975), cert. den., 323 So. 2d 273 (Fla.1975), support this conclusion. Both cases held that, as stated in Blake at 332 So. 2d 677, an “entirely unsolicited and self-initiated communication from the defendant,” was not subject, as a part of the plea bargaining process, to the exclusionary provisions of former Fla.R.Crim.P. 3.171(d), the predecessor of Fla.R.Crim.P. 3.172(h). The Fifth Circuit’s formulation of the rule likewise encompasses this requirement of mutuality. In United States v. Geders, supra, at 566 F. 2d 1231, the Court said:

“. . . when the government and the defendant discuss his criminal activities, each side entertaining the desire to receive a quid pro quo, the government does so at its own risk that statements made by the defendant will not be admissible against him at trial.”

In this case there is no evidence that the state, through Detective Wilson, discussed Stell’s activities while entertaining, much less expressing, a “desire to receive a quid pro quo” from the defendant. Only Stell wanted something in return for an offer which the officer steadfastly declined to accept. In this area, as in so many others, it takes two to tango, and Wilson wasn’t dancing.

Moreover, it follows a fortiori from what we have said that the admission of the tape and of Wilson’s description of the conversation could not, even if incorrect, have amounted to the fundamental error required in this case for reversal because of the absence of an objection at the first trial on the ground now raised, Koran v. State, 213 So. 2d 735 (Fla. 3rd DCA 1968), and of any objection at all at the second trial. Particularly since the evidence contained no admission whatever as to the offenses actually being tried,1 it is obvious that the defendant’s rights were not so plainly and adversely affected as to require reversal despite his failure properly to preserve the issue below. Wright v. State, supra.

Our review of the second issue raised by the appellant discloses no reversible error. The judgment below is therefore

Affirmed.

LETTS and BERANEK, JJ., concur. . Indeed, at the first trial, the jury was informed that Stell had been acquitted on the misdemeanor marijuana charge, thus lending even more credence to his statement that he had offered to plead guilty to it only for reasons of convenience.


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Cited By

  • Anderson v. State, 420 So. 2d 574 (Fla. 1982)
    …the law as to mandate reversal and the opportunity to plead anew in all types of criminal cases. . The state contends that only the prosecuting attorney can negotiate a plea. See 33 Fla.Stat. Ann. rule 3.171, comment, 246 (1975). . Stell v. State, 366 So. 2d 825 (Fla. 4th DCA 1979); Blake v. State, 332 So. 2d 676 (Fla. 4th DCA 1976); Wright v. State, 309 So. 2d 215 (Fla. 3d DCA), cert. denied, 323 So. 2d 273 (Fla.1975). . Notwithstanding our holding of inadmissibility of the February and May statements, we…
  • Simeon v. State, 520 So. 2d 81 (Fla. 3d DCA 1988)
    …uction of the charge and the imposition of an extremely lenient sentence.2 See Barclay v. State, 343 So. 2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978); Messer v. State, 330 So. 2d 137 (Fla.1976); Stell v. State, 366 So. 2d 825 (Fla. 4th DCA 1979); see also Cowheard v. State, 365 So. 2d 191 (Fla. 3d DCA 1979), cert. denied, 374 So. 2d 101 (Fla.1979). In this context the egregious lie detector statement can only be regarded as a volunteered, uninvited response which the app…
  • Barguez v. State, 534 So. 2d 816 (Fla. 3d DCA 1988)
    …IAM. Affirmed. See State v. Suarez, 510 So. 2d 643 (Fla. 2d DCA 1987); Fairweather v. State, 505 So. 2d 653 (Fla. 2d DCA 1987); Madden v. State, 499 So. 2d 63 (Fla. 5th DCA 1986); Lecoin v. State, 418 So. 2d 336 (Fla. 3d DCA 1982); Stell v. State, 366 So. 2d 825 (Fla. 4th DCA 1979); State v. Reasbeck, 359 So. 2d 564 (Fla. 4th DCA 1978); Gomien v. State, 172 So. 2d 511 (Fla. 3d DCA 1965).…

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