Opinion
Case No. 4D01-4093.
Opinion filed April 9, 2003.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ana Gardiner, Judge; L.T. Case No. 98-14996 CF B.
Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
Following reversal of Mounds' conviction of trafficking in cocaine, possession of cocaine, and possession of drug paraphernalia, and prior to the re-trial on the trafficking charge, the state offered Mounds a plea to five years imprisonment. At that time, the judge commented that if Mounds was found guilty, "most likely this Court will have the same sentence that I imposed before, which is the nine plus years, but the State is offering you five years to resolve the case with credit for time served of 36 months." Following the re-trial, Mounds was found guilty and sentenced to 105.25 months. He subsequently filed a motion to correct sentencing errors, alleging the judge's pre-trial comments demonstrated vindictiveness. The motion was denied.
We conclude that the trial court correctly denied Mounds' motion, and affirm. It is up to Mounds to demonstrate vindictiveness. See Wilson v. State, 792 So.2d 601, 603 (Fla. 4th DCA 2001) (holding that the indication by a judge of a sentence that he would likely impose upon a conviction after a plea offer was not sufficient to warrant a finding of judicial vindictiveness). As this court recognized, "[a]bsent a demonstration by the defendant of judicial vindictiveness or punitive action, a defendant may not complain simply because he received a heavier sentence after trial. A disparity between the sentence received and the earlier offer will not alone support a finding of vindictiveness. . . . Having rejected the offer of a lesser sentence, [the defendant] assumes the risk of receiving a harsher sentence." Id. Here, Mounds has failed to demonstrate prejudice.
The record reflects that Mounds was not subjected to a more severe punishment for standing trial. The sentence imposed did not exceed his original sentence. There is no indication that the trial court gave any improper weight to Mounds' failure to accept the plea offer. By its comment, the court simply stated the obvious, thereby providing Mounds with the opportunity to make, and some information that might assist him in making, an informed decision.
We do not recognize a presumption of vindictiveness here. Mounds asks this court to compare Prado v State, 816 So.2d 1155 (Fla. 3d DCA 2002), and Charles v. State, 816 So.2d 131 (Fla. 3d DCA 2002), in which the Third District in both cases recognized a presumption of vindictiveness arising from the trial court's imposition of a harsher sentence after a rejection of a plea offer. This court, however, in Morales v. State, 819 So.2d 813 (Fla. 4th DCA 2002) (en banc), recognized that "there is no presumption of vindictiveness where a defendant rejects a plea offer or has a plea set aside and subsequently receives a greater sentence after going to trial." Id. at 833. This court has reiterated this position in Pagnotti v. State, 821 So.2d 466 (Fla. 4th DCA 2002), and Melvin v. State, 825 So.2d 421 (Fla. 4th DCA 2002).
We note that we do not, however, accept the state's additional argument that Mounds cannot appeal the sentence because it is within the permitted sentencing guideline range. This court has recognized that an exception to this general rule exists where the trial court considers an impermissible factor such as judicial vindictiveness when a defendant rejects a plea bargain and elects to go to trial. See Winther v. State, 812 So.2d 527 (Fla. 4th DCA 2002).
We also find no reversible error or abuse of discretion as to the other issues raised. The conviction and sentence are affirmed.
GROSS and MAY, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.