CALDERON v. STATE (2026)

Cosme Calderon appeals his judgment and sentence for grand theft. We affirm, finding no merit in any of the claims raised on appeal by Calderon,¹ but write to address his assertion that the trial court committed harmful error by allowing the jury to hear allegedly privileged statements made by Calderon in open court during a pretrial hearing.

Calderon contends the trial court committed reversible error by allowing the jury to hear statements made by him in open court during a colloquy with the trial judge just before jury selection commenced. He contends these statements were made during plea negotiations and thus, were privileged and inadmissible under section 90.410, Florida Statutes (2024) and Florida Rule of Criminal Procedure 3.172(i), which provide in relevant part:

Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal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.

§ 90.410 (emphasis added).

Evidence. Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

Fla. R. Crim. P 3.172(i) (emphasis added).2

The day the trial was scheduled to begin, the trial judge had a discussion with the defendant, his counsel and the prosecutor in open court, addressing the latest plea offer extended by the State. Calderon rejected the State's plea offer, telling the court:

DEFENDANT: They don't have anything. I already saw them [the surveillance videos], and they don‘t have anything. We watched all the videos. And the coworkers are the ones who lost the tickets, and they want to blame me for it. They have videos that show that I'm working with the other register, but they don't have —— with the other cashier, but they don‘t have —— maybe the manager lost them, and they were deactivated. The lotto — — all the time they used to return deactivated tickets, and they wanted to blame it on me.

DEFENSE COUNSEL: Your Honor, I‘m going to—I'm going to stop him, and I'm going to — I'm going to advise him not to make any other statements about the facts and circumstances.

After this, the court confirmed one last time that Calderon was rejecting the State's plea offer, and inquired to ensure Calderon was aware that the maximum possible sentence (if convicted as charged) was fifteen years in prison. Calderon responded to the court:

DEFENDANT: It doesn‘t matter. Do whatever you need to do. But I know that I don‘t owe anything․ Probably is my coworkers who lost all the stuff, and they want to blame me.

COURT: Is he going to talk anymore?

DEFENSE COUNSEL: I advised him to remain silent, Judge. It's his choice.

․

DEFENDANT: There‘s no video. There‘s nothing. The only video they have is that I'm one of the cashiers. That's it. But not a video of me grabbing or taking anything that is not mine. They have to have proof that I still got —— where is the money that, supposedly, I got paid for that? They don‘t have any of that, and the lotto has all the reports. I don‘t owe anything to anybody.

DEFENSE COUNSEL (addressing client): I told you to remain silent.

DEFENDANT: Well, then they shouldn‘t be asking me any questions then.

The trial court colloquied Calderon one last time, immediately before the jury venire was brought into the courtroom:

COURT: [J]ust remind me, Ms. Cruz [prosecutor], what was the plea offer?

STATE: It was a withhold, five years reporting probation, and a criminal order of restitution in the amount of $53,000.

COURT [addressing defendant]: And you said you weren‘t interested in the plea bargain?

DEFENDANT: No, because the employer owes me more than that.

A jury was selected and the trial unfolded. The next day, the State advised the court that it intended to play a recorded statement Calderon made during his plea colloquy a day earlier. Defense counsel objected “as to privilege,” but the trial court overruled the objection.

Although we know that the State presented some portion of a recorded statement made by Calderon during the prior day's pretrial hearing, we do not know what portion of that recorded hearing was presented to the jury. The recording itself was not introduced into evidence and is not a part of the record. Nor does the trial transcript reflect the content of the recorded statement presented to the jury. Instead, the trial transcript merely indicates that a recording was played to the jury.³ Under these circumstances, Calderon has failed to properly preserve this issue, precluding us from determining whether the trial court abused its discretion, see Pujol v. State, 290 So. 3d 520 (Fla. 3d DCA 2019), or whether any harmful error occurred. See Umana v. Citizens Prop. Ins. Corp., 282 So. 3d 933, 934 (Fla. 3d DCA 2019) (“Whether the absence of the transcript is fatal to the appeal depends on the nature of the alleged error. The appellate court may be able to correct an error of law without a transcript of the testimony presented in the lower tribunal. Likewise, the appellate court may be able to correct an error that appears on the face of the record. In contrast, the absence of a transcript is likely to present a serious problem if the order is one that turns on an issue of fact or the proper exercise of judicial discretion. In either of these events, it may be impossible to evaluate the order without reference to a full record of the testimony and other evidence.”) (quoting Philip J. Padovano, Florida Appellate Practice, § 18:3 (2018 ed.)); see also Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error․ When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court cannot properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.”).

Affirmed.

FOOTNOTES

1.   Calderon asserts: (1) he was entitled to a judgment of acquittal because the State failed to present competent substantial evidence that he committed a criminal offense; (2) the trial court committed harmful error by allowing the jury to hear Calderon's privileged statement during plea negotiations; (3) the trial court's jury instructions impermissibly shifted the burden of proof and constituted fundamental error; and (4) there was no competent substantial evidence that any person or entity suffered financial losses and thus, the restitution order was improper.

2.   We note, parenthetically, that while “evidence of statements made during plea negotiations is not admissible in evidence,” Nunes v. State, 988 So. 2d 636 (Fla. 2d DCA 2008), we would need to know what portions of the above-described discussion between the trial court and Calderon were played to the jury to determine whether they fall within the scope of rule 3.172(i) or section 90.410. For a court to “determine whether a discussion should be characterized as a plea negotiation and as inadmissible, the trial court should carefully consider the totality of the circumstances.” U.S. v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) (“The trial court must apply a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused's expectation was reasonable given the totality of the objective circumstances.”). Importantly, “a distinction will be drawn between offers to do something in furtherance of a negotiated plea, which are inadmissible, and independent admissions of fact, which may be admitted.” Id. at 1368.

3.   We take this opportunity to remind trial courts that, in the absence of an agreement by the parties and approval by the trial court, a court reporter must make a good-faith effort to transcribe the audio portion of a recording presented to the jury. See Fla. R. Jud. Admin. 2.535(c) (“When trial proceedings are being reported, no part of the proceedings is omitted unless all of the parties agree and the court approves the agreement.”).

EMAS, J.