       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 30, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-609
                          Lower Tribunal No. 14-4513
                             ________________


                               Nelson Santoni,
                                    Petitioner,

                                        vs.

                            The State of Florida,
                                   Respondent.



      A Case of Original Jurisdiction – Mandamus.

     Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public
Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
Attorney General, for respondent.


Before SUAREZ, LAGOA, and LOGUE, JJ.

      LOGUE, J.
      Nelson Santoni petitions for a writ of mandamus directing the trial court to

accept his guilty plea to second-degree murder. We deny the petition.

      The State, by information, charged Santoni with second-degree murder. At

the arraignment on the charge, the State informed the trial court that it was seeking

a grand jury indictment on first-degree murder, which, unlike second-degree

murder, carries as its maximum penalty the sentence of death.1 Defense counsel

immediately announced Santoni’s unconditional offer to plead guilty to second-

degree murder. The State objected to the plea due, in part, to the constitutional

right of the homicide victim’s next of kin to be present at crucial stages of criminal

proceedings. After hearing arguments of counsel, the trial court declined to

consider the guilty plea at that hearing. This petition followed.

      “In order to be entitled to a writ of mandamus the petitioner must have a

clear legal right to the requested relief, the respondent must have an indisputable

legal duty to perform the requested action, and the petitioner must have no other

adequate remedy available.” Huffman v. State, 813 So. 2d 10, 11 (Fla. 2000). The

issue in this case is whether the trial court had the discretion to postpone

consideration of Santoni’s request to plead guilty. We hold the trial court has such

discretion.



1In Florida, first-degree murder must be prosecuted by grand jury indictment. Fla.
R. Crim. P. 3.140(1).

                                          2
      Florida Rule of Criminal Procedure 3.160 recognizes the trial court’s

discretion in determining when to consider and accept a plea. It provides:

      If a person who has been indicted or informed against for an offense,
      but who has not been arraigned, desires to plead guilty thereto, the
      person may so inform the court having jurisdiction of the offense, and
      the court shall, as soon as convenient, arraign the defendant and
      permit the defendant to plead guilty to the indictment or information.

Fla. R. Crim. P. 3.160(c) (emphasis added). The phrase “as soon as convenient”

grants the trial court a modicum of discretion in deciding when to schedule a plea

hearing.

      This makes sense. Before accepting a guilty plea, the trial court “shall

determine that the plea is voluntarily entered and that a factual basis for the plea

exists.” Fla. R. Crim. P. 3.172(a). Such an inquiry, which requires the participation

of the prosecution and defense, does not permit a defendant to unilaterally dictate

when the trial court can accept a plea. For example, before accepting a guilty plea,

the trial court may order the defendant to undergo psychological evaluations to

determine whether he or she is entering the plea voluntarily. Or, the prosecutor

present at the arraignment may be too unfamiliar with the case to provide a factual

basis for the plea at that time.

      Moreover, Florida’s constitution protects the right of homicide victim’s next

of kin to attend crucial stages of criminal proceedings to the extent the right does

not interfere with the constitutional rights of the accused. Art. I, § 16(b), Fla.



                                         3
Const. The trial court’s responsibility to ensure that the victim’s rights are properly

accommodated also cuts against the claim that a defendant may unilaterally dictate

the timing of a plea hearing. The scheduling of such a deliberative process is far

from the type of ministerial act that can be compelled by issuance of a writ of

mandamus.

      As Santoni himself concedes, there is no federal constitutional right to have

a trial court accept a guilty plea, much less one that controls the timing of the plea

hearing. See Santobello v. New York, 404 U.S. 257, 262 (1971) (“There is, of

course, no absolute right to have a guilty plea accepted.”); North Carolina v.

Alford, 400 U.S. 25, 38 n.11 (1970) (“A criminal defendant does not have an

absolute right under the Constitution to have his guilty plea accepted by the court,

although the States may by statute or otherwise confer such a right.”) (internal

citation omitted). Florida also has not conferred such a categorical right. See

Rigabar v. Broome, 658 So. 2d 1038, 1040 (Fla. 4th DCA 1995).2

      The State, relying on State ex rel. Schieres v. Nimmons, 364 So. 2d 1262

(Fla. 1st DCA 1978), further argues that a trial court may reject an unconditional

offer to plead guilty to second-degree murder if the plea is a tactical maneuver

2 We do not reach the issue of whether the trial court had discretion to reject the
plea if the requirements of rule 3.172 had been met. We note only that the Fourth
District, in granting a mandamus petition, held a trial court must accept an
unconditional guilty plea where it is (1) knowingly and voluntarily offered, (2)
supported by a factual basis, and (3) agreed to by the State. Rigabar, 658 So. 2d at
1040.

                                          4
designed to avoid a grand jury’s indictment for first-degree murder. We do not

reach that issue. We simply hold that a trial court has the discretion to decide when

to hold a plea hearing. Because the timing decision lies within the sound discretion

of the trial court, mandamus is not available to control the scheduling of the

hearing. See Mathews v. Crews, 132 So. 3d 776, 778 (Fla. 2014) (“It is well-settled

that mandamus is neither the appropriate vehicle to seek review of an allegedly

erroneous decision by another court, nor is it the proper vehicle to mandate the

doing or undoing of a discretionary act.”).

      Petition denied.




                                          5
