"Let's make a deal"; the problem of vindictive sentencing: judges have nearly unlimited discretion in sentencing defendants to maximum statutory sentences. The facial legality of maximum sentences can lead to increases in vindictive sentencing claims.

"And God saw their works, that they turned from their evil way; and God repented of the evil, which He said He would do unto them; and He did it not."

3 JONAH 10

"Repentance has a role in penology. But the premise of our criminal jurisprudence has always been that the time for repentance comes after trial."

Gillman v. State, 373 So. 2d 935, 938 (Fla. 2d DCA 1979)

It's a procedure that is very common in the daily operations of our criminal justice system. In an effort to resolve a pending matter short of trial, the prosecutor makes a plea offer to the defendant. For whatever reason, the defendant rejects the offer. The judge becomes involved and makes an offer of his own. This too is rejected and the defendant proceeds to a jury trial and is found guilty. The judge then imposes a sentence that, while legal, greatly exceeds his initial offer. Defendant now appeals, claiming that the sentence was vindictive, given in retaliation for his exercising of the fundamental right to a jury trial.

Will such an argument succeed? In many cases, the answer is yes. Whether the increased sentence will be upheld will depend to a large extent on what the trial judge said and, in some instances, on what he didn't say.

A defendant's right to trial by jury is virtually sacred. Except in limited situations regarding minor offenses (1) the Constitution of the State of Florida provides that "[t]he right of trial by jury shall be secure to all and remain inviolate" (2) A corollary to this principle is that a defendant should not be punished for exercising this right: "A defendant's fear of retribution in sentencing cannot be permitted to chill the exercise of her Fifth Amendment privilege against self-incrimination, or her Sixth Amendment right to have her guilt or innocence determined by a jury." McDonald v. State, 751 So. 2d 56, 58 (Fla. 2d DCA 1999). But does this necessarily mean that, after a jury finding of guilty, a judge is bound to sentence the defendant to the same terms as those contained in his pretrial offer? As a general rule, the answer is "no." As the Fourth District Court has stated, "by rejecting the offer of a lesser sentence, the accused assumes the risk of receiving a harsher sentence." Gardner v. State, 699 So. 2d 798, 800 (Fla. 4th DCA 1997).

However, as the Third District Court has made clear, the reason for any sentence that exceeds the original offer must be based on something other than the decision to go to trial: "The defendant cannot be heard to complain if the fact that his sentence is greater than the plea offer is the result, not of the assertion of his rights, but of his rejection of the proposed agreement and of the fair conclusion as to his punishment which the court has the consequent ability to render." Frazier v. State, 467 So. 2d 447,450 (Fla. 3d DCA 1985). The critical inquiry, then, for an appellate court, is determining whether the record supports the state's claim that the sentence is appropriate for the crime, regardless of whether defendant's guilt was determined by a plea or a jury finding.

An analysis of this issue must begin with an examination of the Florida Supreme Court's decision in State v. Warner, 762 So. 2d 507 (Fla. 2000), where the court, after determining that it is proper for trial judges to enter into plea discussions with defendants, (3) set forth the ground rules for such negotiations. (4)

Essentially, the court set forth three basic principles: First, "[t]he judge may state on the record the length of sentence which, on the basis of information then available to the judge, appears to be appropriate for the charged offense." Id. at 514. According to the second principle, the "judge's preliminary evaluation of the case is not binding, since additional facts may emerge prior to sentencing which properly inform the judge's sentencing discretion." Id. The claim of vindictive sentencing is avoided by the judge's adherence to the third principle: "To avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant's right to trial." Id.

Clearly an appellate court's task is easier when the trial judge, often in a pique of frustration, makes it clear that such a "procedural choice" was in fact the reason for the increased sentence. In King v. State, 751 So. 2d 691 (Fla. 2d DCA 2000), the defendant, while on probation for a lewd and lascivious conviction, was arrested for a similar offense. The state had made him an offer of 15 years in Florida State Prison as a prison releasee reoffender to resolve all pending matters. The defendant rejected this offer and proceeded to trial, where a jury found him guilty of the new substantive offense. Even after this occurred, the trial judge offered the defendant the same offer to resolve the still-pending probation violation. Not only did the defendant reject this offer, he advised the court that he would not stipulate to having committed any prior offenses, and that he was not waiving his right to a presentence investigation.

After a hearing in which the state proved the violation, the judge then sentenced King to 30 years as a habitual felony offender, a sentence that she was authorized to impose. However, in a discussion with the defense attorney who was trying to explain that it might have been her fault that King refused the offer, the trial judge stated, "You've got to be able to figure out what's in your client's benefit when it's offered, instead of wasting everybody's time." Id. at 693. This statement was enough to taint the sentence, and cause the matter to be remanded to a new sentencing judge. (5)

In a similar case, Jones v. State, 750 So. 2d 709 (Fla. 2d DCA 2000), another defendant, also on probation for lewd and lascivious conduct, committed a new violation, this time in another county. He had already been convicted of the new offense at the time that the hearing was held on his probation violation. Even in the face of this evidence, Jones insisted on continuing with the probation hearing. The trial judge then warned him that, should the hearing, which she characterized as a "charade," continue, she would sentence him to the maximum sentence to be run consecutive to the sentence on the new offense, which in fact is what she did. Again, this expression of exasperation (6) led the appellate court to conclude that the sentence was presumptively vindictive, and ordered a new sentencing hearing with a different judge.

Perhaps less blatant than the instances cited above are those situations where the court enters a sentence based not on defendant's exercise of his constitutional rights per se, but rather on the fact that such a decision showed a lack of remorse. This was the circumstance addressed by the court in Gallucci v. State, 371 So. 2d 148 (Fla. 4th DCA 1979). The defendant had rejected a one-year prison offer by the state prior to trial. After his conviction, his counsel asked the trial judge to sentence him to probation. The judge noted his belief that, when a defendant accepts the state's plea offer, this is a rehabilitative factor that the court should consider in sentencing. If he rejects such an offer, probation is highly unlikely: "It is not my intention to try a case and then have the defendant come in and expect to be placed on probation, unless it is very, very odd and weird circumstances." Id. at 150.

In an elementary logic lesson, the Fourth District dealt with this thorny issue: "It is true that in considering a sentence for a defendant who has pleaded guilty at trial court [one] may consider the plea itself as step toward rehabilitation. However, while it may seem entirely logical, it is not so easy to simply turn the coin over and conclude that a request for a trial is an indication that a defendant cannot be rehabilitated." Id. The right to trial by jury clearly trumps the notion of the rehabilitative nature of entering a plea.

Similarly, in Gillman v. State, 373 So. 2d 935 (Fla. 2d DCA 1979), the defendant's sentence was reversed as a result of the trial court's addressing him as follows:

   The Court's disposition of this matter would have been even more lenient
   if, in fact, you had acknowledged your responsibility and had entered a
   guilty plea to the charges as opposed to requiring a jury to determine your
   guilt.... If you had accepted responsibility for it, I think everyone
   concerned would be considerably more sympathetic, but that was not the
   case.

Id. at 938.

The Second District Court, in reversing the sentencing, went on to make the pronouncement regarding the timing of repentance that is quoted at the start of this article. (7)

But often, however, there is nothing in the record to justify the increased sentence. In this circumstance, there is a split of authority as to whether a presumption of vindictiveness exists. In McDonald, the Second District Court of Appeal held that "when the judge has been involved in the plea negotiation and then later imposes a harsher sentence, the sentence is presumed to be vindictive." 751 So. 2d at 59. However, the Fifth District Court of Appeal has rejected this view. It adheres to the principle that "a disparity between the sentence received and an earlier plea offer will not alone support a finding of judicial vindictiveness.... Instead, there must be a showing that the enhanced sentence was directly attributable to judicial vindictiveness or punitive action." Edwards v. State, 712 So. 2d 407, 409 (Fla. 5th DCA 1998). See also Richardson v. State, 27 Fla. L. Weekly D1655 (Fla. 5th DCA July 19, 2002), where the court rejected a vindictive sentencing claim noting that the defendant had failed to carry his burden of proving that a successor judge who had resentenced him to a longer prison term was motivated by actual vindictiveness. However, when the same successor judge enhanced the sentence after Richardson succeeded on a 3.800(b)(2) motion, that enhancement supports a finding of vindictiveness since the "last two sentencing hearings were conducted by the same judge with the same information available to him."

This principle was followed by the Fourth District Court of Appeal in Wilson v. State, 792 So. 2d 601 (Fla. 4th DCA 2001), where the judge offered the defendant a 128-month sentence in exchange for an admission to a violation of probation. Wilson went to trial and received 150 months instead. The sentence was affirmed, with the court noting that "the trial judge made no remarks which would give any indication that the harsher sentence was being imposed as a punitive measure for rejecting the previous offer." Id. at 603. See also Morales v. State, 27 Fla. L. Weekly D1099 (Fla. 4th DCA May 8, 2002), where the court certified conflict with McDonald.

In those districts where the presumption still applies, reliance on the "additional facts" as set forth in State v. Warner, may be legitimate, but in order to be valid this thought process must be clear on the record. The Fifth District Court addressed this situation in Byrd v. State, 794 So. 2d 671 (Fla. 5th DCA 2001), when it was asked to reverse a 75-year sentence handed down after Byrd had rejected a 30-year offer. In remanding with directions for the court to sentence Byrd to the 30 years, the court observed that "whether we call it an unrebutted presumption or merely hold that the court has failed to explain on the record what information it had at sentencing that it did not have at the time of the plea offer and how such information would have made a difference, the result is the same." Id. at 673. Likewise, in Stephney v. State, 564 So. 2d 1246 (Fla. 3d DCA 1990), the court offered the defendant one year in jail and drug treatment at arraignment. After the jury was sworn, the offer was upped to three and one-half years in prison. Upon conviction, the defendant received nine years, which was the maximum guidelines sentence. Again, this sentence was reversed, as the court failed to make a record to show why its sentence should not be considered vindictive. The trial judge was directed to sentence the defendant within the guidelines range of five and one-half to seven years.

It appears abundantly clear that a sentence is vindictive when the court has all the relevant evidence before it as a result of proceedings that occurred prior to the time that the offer was made. Thus in Prado v. State, 27 Fla. L. Weekly D1047 (Fla. 3d DCA May 8, 2002), the trial judge initiated plea negotiations with the defendant after his first trial had ended in a hung jury, strongly suggesting that he accept the state's four-year offer. When the jury came back guilty, Prado was sentenced to 40 years. Since the judge was aware of all the facts as a result of the first trial, the appellate court reasoned that "the only possible conclusion is that the harsher sentence was imposed because Prado failed to accept the favorable plea bargain championed by the court prior to trial." Id. It directed that Prado be sentenced to the original four-year offer. (8)

If hearing the facts in a previous trial binds a trial court to its original offer, then certainly learning them in the trial at hand will also limit a judge's sentencing discretion. In Charles v. State, 27 Fla. L. Weekly D1051 (Fla. 3d DCA May 8, 2002), the trial judge made a 12-year habitual offender offer to the defendant while the jury was out. It was rejected. After the jury's guilty verdict, the defendant was sentenced to 50 years as an habitual offender with a 15-year minimum mandatory sentence. Obviously there were no new facts discerned between the time that the offer was made and when sentence was imposed. (9) As a result, the appellate court ruled that the 12-year sentence had to be imposed.

If similar facts at the two relevant times lead to a presumption of vindictiveness, then certainly it stands to reason that the discovery of facts favorable to the defendant would be an indication of vindictiveness for the refusal to accept a plea offer. This was the situation in McDonald v. State, where the defendant rejected two offers from the state, the most harsh being 48 months as an habitual felony offender. The state proffered that the defendant had sold drugs to an undercover officer and that their marked money had been recovered from her at the time of her arrest. As the state's case progressed, it became clear that the money had not in fact been discovered, leading the state to make an offer that was accepted by the defense, but rejected by the trial judge. Upon conviction, the defendant was sentenced to 30 years, the maximum allowable. As with the previous cases, the court could find nothing in the record that would support a finding of something other than judicial vindictiveness. It reversed and remanded with instructions to sentence the defendant to the 48-month term.

There are some situations, however, in which sentences above and beyond the original offer will be upheld. As sanctioned in Warner, an increased sentence can be justified by information becoming known after the offer was rejected. Such information can come from a presentence investigation. Batista v. State, 685 So. 2d 20 (Fla. 3d DCA 1996). It can also come from the facts ascertained at a trial or hearing. Thus in Morales v. State, the Fourth District Court of Appeal let stand the judge's imposition of a five-year sentence after a probation hearing that was held after his two and one-half year offer was rejected. This was supported by the court's now having received more information about the defendant's prior record and more extensive details about the most recent attack on the same victim that led to Morales' probation being violated.

More significantly, a sentencing court will not be considered vindictive if its sentence exceeds an offer made exclusively by the state. This was the situation in Martin v. State, 27 Fla. L. Weekly D1008 (Fla. 5th DCA May 3, 2002), where the defendant rejected the state's offer of 17 years and was ultimately sentenced to 35. Although the trial judge was aware of the state's offer and fully explained to the defendant what the consequences could be if the offer was rejected, he did not advocate the state's position, nor did he indicate prior to trial what his proposed sentence would be. The sentence was affirmed, with the court wisely noting that, were this not to be allowed,

   [T]he plea bargain offered by the state would become the presumptive
   sentence, above which the trial judge could not go without carrying the
   burden of showing a lack of vindictiveness. It would limit the trial
   judge's discretion in sentencing to a degree not required by Warner.

Id. See also Santana v. State, 677 So. 2d 1339 (Fla. 3d DCA 1996), where the increased sentence was affirmed, the court observing that not only did the trial judge not participate in negotiations, but he also rejected the state's request that the defendant be given an upward departure sentence.

The presence of a "nonrecord" of judicial plea bargaining was also key in the affirmance of the sentence in Richardson v. State, 809 So. 2d 69 (Fla. 2d DCA 2002). Richardson rejected a three-year plea offer on three felony counts. He was acquitted of two charges and found guilty of one lesser-included offense. The trial judge imposed a five-year prison term. Since there was no record of a proposal from the judge, there could be no presumption of vindictiveness, and Richardson could not demonstrate the presence of actual vindictiveness. (10) Likewise in Willingham v. State, 781 So. 2d 512 (Fla. 5th DCA 2001), the court rejected a "per se" vindictiveness argument, ruling that "length of sentence alone is not a legally sufficient basis for a defendant to challenge a sentence." Id. at 514.

Finally a pre-Warner case, whose continued viability is thus questionable, needs to be discussed, as it is perhaps the best example of a direct and honest approach that is probably no longer sanctioned. In this situation the judge made an offer "which avowedly represented less than a fair sentence ... solely in order to avoid the likely possibility that the defendant, whom the judge thought guilty, would be acquitted by the jury." Frazier v. State, 467 So. 2d 447 (Fla. 3d DCA 1985). His imposition of an increased sentence was affirmed. The Third District Court of Appeal held that this was not a punishment for going to trial, but that the ultimate sentence was fair in light of all the circumstances that are typically considered at sentencing. It was not going to allow the defendant, in this set of facts, to reject the offer at no risk. The court did, however, suggest that the practice of "discounting" a sentence in light of weaknesses in the state's case is something that is better left to the prosecutors.

In the disposition of cases, trial judges are faced with many legitimate competing goals, one of which is expedience, commonly known as "moving the docket." If every case went to trial, our criminal justice system would approach a virtual "meltdown." Therefore, criminal court judges are certainly justified in trying to reach resolutions of pending cases short of trial. Since October 1, 1998, the effective date of the Criminal Punishment Code (Fla. R. Crim. P. 3.704 and F.S. [section] 921.002 (2002)), trial judges once again have nearly unlimited discretion in sentencing defendants to the maximum statutory sentences." As a result, the facial legality of maximum sentences can lead to an increase in claims of vindictive sentencing. These allegations can be minimized if trial judges keep in mind that a defendant's right to a trial outweighs all other factors.

(1) FLA. STAT. [section] 918.0157 exempts the right to trial by jury in cases of second degree misdemeanors where the trial judge states that a prison sentence will not be imposed nor will the defendant be adjudicated upon conviction.

(2) FLA. CONST. art. I, [section] 22.

(3) FLA. R. CRIM. P. 3.171, while not prohibiting plea negotiating by trial judges, only encourages the prosecuting attorney to enter into such negotiations. Compare FED. R. CRIM. P. 11(e), which states: "The court shall not participate in any discussions between the parties concerning any such plea agreement."

(4) The court may only take such action at the request of a party. Warner, 762 So. 2d at 514. See also State v. Chaves-Mendez, 809 So. 2d 910 (Fla. 5th D.C.A. 2002).

(5) The appellate court noted that there may be information in the presentence investigation that would authorize this increased sentence. As a result, it did not mandate the imposition of any particular sentence.

(6) The court did observe that the trial judge was "understandably dismayed" by the fact that she had to conduct a hearing even though the probationer was found guilty of a new substantive offense.

(7) Lack of remorse also cannot be used by a juvenile judge as a ground to reject a disposition recommended by the Department of Juvenile Justice. K.N.M. v. State, 793 So. 2d 1195 (Fla. 5th D.C.A. 2001).

(8) It must be remembered that the principles enunciated here do not necessarily apply to resentencings necessitated by the Heggs decision, (759 So. 2d 620 (Fla. 2000)), since they are considered de novo proceedings. Sullivan v. State, 801 So. 2d 185 (Fla. 5th D.C.A. 2001).

(9) The court had also expressed its concern with the fact that the defendant did not plead guilty, stating that had he done so, he would have received mercy.

(10) Although feeling constrained to concur, Judge Blue felt that the trial judge was either acting to punish the defendant for going to trial, or because he did not agree with the jury's verdict.

(11) "It appears that the sentencing cycle has come full circle. We first had unmeasured trial court discretion in sentencing up to the statutory maximum. We tried guidelines and limitations on sentencing discretion. We advanced to increasingly fewer limitations and more sentencing discretion. And now we return to where we began." Jackson v. State, 27 Fla. L. Weekly D1219 (Fla. 5th D.C.A. 2002).

Mark F. Lewis is an assistant state attorney in the 13th Judicial Circuit, where he serves as intake division chief. He graduated with a B.A., cum laude, from State University of New York at Stony Brook and received his J.D. with honors from the University of Florida College of Law.

This column is submitted on behalf of the Criminal Law Section, Stephen M. Everhart, chair, and Georgina Jimenez-Orosa, editor.