MADISON LEVINE—When negotiating plea deals under recommended sentencing guidelines, a judge may offer a downward departure to a defendant only when there exists an open offer by the state. According to State v. Lago, “the Court is prohibited from extending or accepting a plea that would result in a downward departure sentence once the state’s offer is no longer open.” Similarly, State v. Bowser holds that it is only when the offer is open that a trial judge has discretion to undertake a downward departure if he or she deems it appropriate. Therefore, it is of interest to the Court to determine when a State’s counteroffer should be considered an open offer.
Under contract law, “an offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Restatement (Second) of Contracts, § 24. Oftentimes, in the context of a criminal case, instead of making a clear or specific offer, the State advises the defense that it would be willing to accept a specified below code counteroffer. The question becomes whether the above language is actually an offer, thus giving the Court the discretion to offer defendants downward departures in plea agreements.
The State’s counteroffer does in fact represent a “manifestation of willingness to enter into a bargain.” Therefore, the defense is justified in understanding that its assent to that bargain (its actual statement of the terms, i.e. the misleadingly termed “counteroffer”), is invited and will conclude it (the State will accept it, and the Court will impose the sentence). The State’s assertion that it would be willing to accept a specified below code counteroffer from the defense then, itself qualifies as an offer under contract law. In response, the State may point to preliminary negotiations, Restatement (Second) of Contracts, §26, to argue that such language is not an offer.
To qualify as a preliminary negotiation, the statement would have to meet the following requirement: the defense would have to either know or have reason to know that the State does not intend to conclude a bargain until he has made a further manifestation of assent. This is where this definition falls short. The nature of the statement given by the State gives the defense no reason to either know or have reason to suspect that the State does not intend to actually follow through. This is especially evident given the succession and speed with which these events happen; in open court, once the State makes such a statement, the defense counsel immediately gives the offer, and the State accepts or denies on the spot. It seems unreasonable to suspect, then, that an offer made just seconds before would be immediately withdrawn; it is not impossible, but the defense has no reason to know or suspect that will happen, disqualifying the statement as a preliminary negotiation.
Traditionally, if the State does not provide an open offer below the guidelines, then the Court must provide “valid legal ground and adequate factual support for that ground in the case pending before it.” State v. Wiley; West’s F.S.A. § 921.00265. However, if the State’s counteroffer is considered an open offer, then the Court does not need to provide reasons as to why it is granting a downward departure, but can use its discretion in determining what is an appropriate sentence for the crime at hand, removing the power from the State and placing it into the hands of the Court. What results is a judgment call within the sound discretion of the Court determining whether the interests of justice are best served by a departure from the guidelines. Such discretion is beneficial to the criminal justice system considering that the judge is a neutral arbitrator, while the State may wish to impose higher sentences to boost its “tough on crime” image.
Therefore, under contract law, the Court should interpret the State’s assertion that it would accept a counteroffer below guidelines as a valid offer, and, so long as such offer remains open (see State v. Bowser), feel free to offer a downward departure sentence to the defendant.