Can the Judge Cut You a Deal? (The Rules of Plea Bargaining)

By: John Guidry

The criminal justice system here in Orlando runs on a well-established balance of power between the prosecutors, the judge, and the criminal defense attorney.

But this balance of power can be swayed by the behavior of the judge.

• Too Involved: If a judge gets too pushy (“You better take this offer”), they can intimidate a citizen into pleading to something they didn’t do.
• Too Passive: If a judge refuses to participate at all, the courtroom can spiral out of control. Prosecutors may make unreasonable offers, knowing the judge won’t check them.

The Problem: Citizens accused of a crime should not be forced into a jury trial merely because the judge refuses to do their job. When a citizen’s entire future is left up to a stranger in a black robe, they have every right to know what the sentence will be before they enter a plea.

Is the prosecutor offering you a terrible deal?

We might be able to get a better offer directly from the judge. Call John today at (407) 423-1117.

The Case: Ha v. State

Our appellate courts have set strict rules on this. One of the landmark decisions is Ha v. State, 56 So. 3d 834 (Fla. 1st DCA 2011).

In Ha, the defendant claimed the judge exceeded his powers, essentially forcing him into an involuntary plea. The appeals court agreed and allowed the defendant to withdraw his plea. To clear up the confusion, the court reiterated the rules set by the Florida Supreme Court in State v. Warner (2000).

The “Warner” Rules for Judges: The Supreme Court held that judges should “minimize” their participation to avoid coercion, but that does not mean “don’t do it.” Here are the four rules a judge must follow if they want to get involved:

1. Request Only The trial judge may participate in plea negotiations only at the request of a party. The judge cannot initiate the haggling; the lawyer has to ask.

2. Preliminary Evaluation The judge may state on the record what they think is an appropriate sentence. However, the judge must qualify this by noting that this opinion is based only on the facts currently known.

• Translation: The judge has “wiggle room.” If you reject the offer, go to trial, and the jury hears terrible facts the judge didn’t know about, the judge can give you a harsher sentence later.

3. No Threats (The “Trial Tax”) A judge cannot imply that you will be punished just for going to trial.

• Illegal: “I’ll give you probation if you plea now, but I’ll give you jail if you lose at trial.”
• Legal: “Based on what I know now, I’d give probation. But if I hear worse facts at trial, I am not bound by this offer.”
• Yes, the word games are a bit crazy, but they are necessary under the law.

4. On the Record All plea discussions must be made on the record. This seems crazy to me, as I’ve spent many years defending cases in Orange and Seminole counties hashing out deals in chambers off the record. But under Ha, those secret handshake days are supposed to be over.

John’s 2026 Update: The Power of the “Warner Hearing”

Note: In 2026, asking for a “Warner evaluation” is a standard defense tactic.

1. Bypassing the Prosecutor If the prosecutor is offering you 3 years in prison for a crime that usually gets probation, we don’t just accept it.

• We file a motion for a Warner Hearing.
• We go directly to the judge (with the prosecutor present) and ask: “Judge, based on this person’s lack of record and these facts, what would YOU do?”
• Often, the judge will say, “I’d give him probation.”
• The Result: The prosecutor’s 3-year offer becomes irrelevant. You plea open to the judge and go home.

2. The “Zoom” Effect Rule #4 (On the Record) is strictly enforced now because so many hearings happen via Zoom or in courtrooms with digital recording systems. There are very few “back hallway” deals anymore. This actually protects you, because the judge’s promise is recorded for posterity.

The Bottom Line: We taxpayers pay our judges to sentence citizens fairly, not to be rubber stamps for prosecutors. If the State isn’t being fair, we ask the Judge to step in.

Call me at (407) 423-1117. Let’s see what the Judge thinks.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.