In Brief
No. Under section 90.410 of the Florida Evidence Code, a guilty plea that is later withdrawn is inadmissible, and so is a no contest plea or an offer to plead. The rule also covers statements made in connection with those pleas and offers, with one exception: a perjury prosecution. You do not need a signed deal for the protection to apply.
The Rule Is Two Sentences Long
Section 90.410 of the Florida Statutes is short enough to read in full, and both sentences carry weight.
Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.
Chapter 837 is perjury. That is the whole exception, and it is worth saying plainly because people assume there must be more of them.
The same protection appears a second time in the criminal rules. Florida Rule of Criminal Procedure 3.172 says evidence of an offer or of a plea later withdrawn, or of statements made in connection with either, is not admissible in any civil or criminal proceeding against the person who made it. An appellate court has described one subsection of that rule as restating section 90.410 outright.
The Second Sentence Does More Work Than the First
Most people, told about this rule, hear the first sentence and stop. The withdrawn plea itself stays out. Fine.
The second sentence is broader and it is the one that decides cases. Statements made in connection with a plea or an offer are inadmissible too. Not only the signed paperwork. The conversation around it.
That is the sentence that reaches a recorded interview at a State Attorney’s Office, a letter written to a prosecutor offering to resolve a case, or an admission made while trying to work something out. Florida courts have kept out letters to the State offering to plead in exchange for a concession, in several reported cases.
You Do Not Need a Completed Deal
The Florida Supreme Court has held that neither the rule nor section 90.410 requires a plea bargain to be completed, or a written agreement to be signed, before the negotiations are kept out of evidence. The protection attaches to the negotiation, not to the contract.
So a defendant who talks, gets no offer, and is charged anyway may still be able to keep those statements out. The absence of a deal at the end does not retroactively strip the protection from the conversation.
The Two Questions a Judge Actually Asks
Florida construes this exclusion narrowly, which means the analysis matters. Courts here use a two-part test borrowed from a federal case and adopted by the Florida Supreme Court.
- Did the accused have an actual, subjective expectation of negotiating a plea at the time of the discussion?
- Was that expectation reasonable, given the totality of the objective circumstances?
Both halves have to hold. Someone who blurts out a confession in the back of a patrol car and later calls it a negotiation will fail the second question. Someone who walks into a prosecutor’s office with a lawyer, at the State’s invitation, to give a statement everyone understands is the start of a bargaining process will usually satisfy both.
A Seventeen-Year-Old, a Recorded Statement, and a Reversal
The clearest Florida illustration comes from a Second District case, the district covering Pinellas, Hillsborough, Pasco and Manatee.
A seventeen-year-old was developed as a suspect in a homicide. Detectives told him and his father they would treat the first person to come forward fairly. The family hired a lawyer, who advised cooperating. They went to the State Attorney’s Office together and met with an assistant state attorney and two detectives.
Before the statement, the prosecutor was explicit that there was no plea offer on the table. He explained the process the office would follow in deciding whether to make one, including verification and review by a homicide committee. With that warning, the young man gave a long recorded statement implicating himself. He was not arrested that day. He kept cooperating, including wearing a wire, and that work led to the arrest of the person who actually did the shooting.
The State charged him as an adult anyway. His statement became a feature of the trial. He was convicted and sentenced to life.
The appellate court reversed and sent it back for a new trial. Applying the two-part test, it found he plainly had a subjective expectation of negotiating a plea, and that the expectation was objectively reasonable given everything around it, including the fact that the State did make an offer later on. The prosecutor saying there was no offer on the table did not defeat the protection, because the whole meeting was the beginning of a bargaining process.
Where the Protection Runs Out
Three honest limits belong on the same page as the rule.
Perjury. The statute’s own exception. Statements made in connection with a plea or offer can be used in a prosecution under chapter 837.
Narrow construction. Florida courts read the exclusion narrowly and apply the two-part test seriously. A conversation somebody hoped might lead somewhere is not automatically a plea negotiation.
Waivers, which are an open question here. Cooperation agreements commonly ask a defendant to give up exactly this protection. In federal practice the United States Supreme Court has held the analogous federal rule can be waived. Whether and how a Florida court would enforce a waiver of section 90.410 is not something to assume from that, and anyone facing the question should have it researched against current Florida authority rather than reasoning from the federal answer.
If You Are Thinking About Talking
The reason this rule exists is practical rather than generous. Courts have said the point is to allow free and open discussion between the prosecution and the defense during an attempt to reach a compromise. If everything said in that attempt could be used later, nobody would ever start the conversation.
Two things follow for anyone facing a criminal charge in Florida, including a DUI.
Have a lawyer in the room before the conversation starts. The record of who set the meeting up, what was said about the process, and what everyone understood is what the two-part test runs on. That record is built at the time, and it cannot be reconstructed afterward.
Understand what withdrawing a plea does and does not do. Getting a plea withdrawn is its own fight with its own standard. This rule governs what happens to the plea as evidence once it is gone, which is a separate question from whether it can be undone.
What happens later, if the case goes all the way, has its own rules too. We wrote separately about what happens when a Florida jury says it is deadlocked.
This post is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. The rule discussed is section 90.410, Florida Statutes, and Florida Rule of Criminal Procedure 3.172. The case described is Nunes v. State, 988 So. 2d 636 (Fla. 2d DCA 2008), which applies Richardson v. State, 706 So. 2d 1349 (Fla. 1998) and the two-part test adopted in Anderson v. State, 420 So. 2d 574 (Fla. 1982) from United States v. Robertson, 582 F.2d 1356 (5th Cir. 1978). Whether a waiver of section 90.410 is enforceable in Florida is not settled by anything cited here and should be researched against current authority. Every case turns on its own facts, and past results do not guarantee a similar outcome.
