Opinion
Case No. 2D03-1933.
Opinion filed July 23, 2004.
Appeal from the Circuit Court for Collier County, Franklin G. Baker, Judge.
Rexford Darrow of Law Offices of Casassa, Mangone, Miller Faett, Naples, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
Jose Correa appeals from his sentence for burglary of a dwelling and grand theft. We find merit only in his argument that the judge's decision to sentence him to fifteen years after he rejected the judge's plea offer of twelve years raised a presumption of judicial vindictiveness that the State failed to overcome. We therefore reverse and remand for resentencing.
Correa entered a plea of no contest to the charges of burglary of a dwelling and grand theft. He was sentenced as a habitual offender to twenty-five years in state prison for the burglary and five years for the grand theft. Correa filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 requesting to withdraw his plea and to have his sentence vacated. The judge found that the sentencing court had based its twenty-five-year sentence on an incorrect account of Correa's criminal history and agreed that Correa was entitled to resentencing.
The judge called a recess during the proceedings and asked the prosecutor and defense counsel to meet him in his chambers. During the recess, the judge offered to resentence Correa to twelve years if everyone agreed to the amount of time and Correa waived his right to appeal. This meeting was not recorded. When the proceedings continued on the record, the judge asked defense counsel whether he talked to Correa and whether he had a proposal. Defense counsel stated that Correa declined the deal because he wished to preserve his right to appeal. Thereafter, the judge sentenced Correa to fifteen years.
In State v. Warner, 762 So.2d 507, 513-14 (Fla. 2000), the supreme court set forth certain procedural safeguards that must be met when a judge participates in plea negotiations: (1) the trial court must not initiate the plea dialogue; (2) the court cannot state or imply alternative sentencing possibilities which hinge upon future procedural choices; and (3) a record must be made of all plea negotiations involving the trial judge. See Wilson v. State, 845 So.2d 142 (Fla. 2003) (emphasizing that the requirements of Warner must be strictly followed). None of these requirements were met in this case.
When a judge becomes involved in plea negotiations that are ultimately unsuccessful and then later imposes a harsher sentence, the sentence is presumed to be vindictive. Wilson, 845 So.2d at 148. The reviewing court must look at the totality of the circumstances to determine whether the presumption of judicial vindictiveness has been overcome. Id. at 156. The State may overcome the presumption by presenting facts on the record which would explain the increased sentence, other than that the defendant chose to exercise his rights. Id. Here, because the judge failed to strictly follow the requirements of Warner and failed to offer any explanation for the increased sentence, the presumption of vindictiveness was not overcome. Accordingly, Correa is entitled to be resentenced by a different judge on remand Id. at 159; Harris v. State, 845 So.2d 329, 331 (Fla. 2d DCA 2003).
Reversed and remanded for resentencing.
ALTENBERND, C.J., and SILBERMAN, J., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED s