concurring.
The issue before the court is whether a defendant’s discussion with his mother directly related to whether the defendant should accept an outstanding plea offer is inadmissible pursuant to section 90.410, Florida Statutes. Because existing case law excluding statements pursuant to this and similar statutes has involved statements made either to prosecuting authorities or to the court, I concur that the discussion is admissible. I write to note, however, that the value of admitting a discussion concerning the willingness to accept a plea which does not contain a specific admission of guilt may be outweighed by the public policy of allowing a criminal defendant to have discussions with his family concerning an outstanding plea offer.
Section 90.410 reads:
Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal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.
Section 90.410 was “ ‘adopted to promote plea bargaining by allowing a defendant to negotiate without waiving fifth amendment protection.’” Calabro v. State, 995 So.2d 307, 313 (Fla.2008) (quoting Groover v. State, 458 So.2d 226, 228 (Fla.1984)). A defendant’s statements, such as here, that he would accept 16 years rather than 20 may be an inference of guilt, but it is not a direct admission. Where a defendant does not expressly admit guilt, but where he is merely discussing a plea offer -with a family member, it is consistent with the public policy of encouraging plea negotiations to exclude such statements from evidence.
I can find no authority, however, that has interpreted statutes similar to Florida’s to exclude statements made to parties not officially part of the plea process. Such an expansion involves policy considerations and potential pitfalls which are more properly considered by the legislative branch.