Cambridge v. State, 2D02-3347.
| Decision Date | 13 October 2004 |
| Docket Number | No. 2D02-3347.,2D02-3347. |
| Citation | 884 So.2d 535 |
| Parties | Michael D. CAMBRIDGE, Sr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
Michael D. Cambridge, Sr., appeals his conviction and sentence for firing into a vehicle. We conclude that the issues raised by Cambridge with respect to his conviction do not have merit; we affirm the conviction without further comment. But Cambridge's claim that his sentence was vindictive has merit; we reverse the sentence and remand for resentencing.
Cambridge contends that he was subjected to vindictive sentencing because the trial court offered him a sentence of time served if he would enter a guilty plea but imposed a sentence of seven years—consecutive to a prior fifteen-year sentence in an unrelated case—after Cambridge rejected the plea offer, went to trial, and was convicted by the jury. At the trial, Cambridge represented himself, assisted by standby counsel.
The parties offer no transcript of any contemporaneous plea offer to Cambridge. The record on this issue consists of the transcribed statements by the court just prior to the trial. In the presence of the prosecutor and standby counsel, but apparently not Cambridge, at various times in colloquy the trial judge made the following statements:
Discussing Cambridge's request for a continuance and the possibility of Cambridge's accepting representation by counsel, the court stated to Cambridge and standby counsel: "If you continue this until December, you would have 20 months in and I can offer withhold and time served under the . . . and it would have to be a guideline sentence if we are doing that, right?" Later in the colloquy, the court stated:
We have had a number of pretrial dates, four trial dates. We have attempted to put this thing together. We have spent untold amounts of time and money, and I've been on both the State and you to get this resolved. I've been trying to get the State to offer a misdemeanor, so we could get it resolved. They didn't. I, myself, offered a withhold and time served to get it resolved, and you didn't want to because of the appeal. So, despite my best efforts, I have been ordered to get this resolved by either side.
"[A] totality of the circumstances review... is the ... appropriate analysis to employ to determine whether a defendant's constitutional right to due process of law was violated by the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated." Wilson v. State, 845 So.2d 142, 156 (Fla.2003). A presumption of vindictiveness arises where Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (citations omitted); see also Wilson, 845 So.2d at 156 (citing Smith).
In determining whether—based on the totality of the circumstances—a sentence was vindictive, "[j]udicial participation in plea negotiations followed by a harsher sentence is one of the circumstances" which must be considered. Wilson, 845 So.2d at 156. Other pertinent circumstances include but are not limited to:
(1) whether the trial judge initiated the plea discussions with the defendant in violation of [State v.] Warner [, 762 So.2d 507 (Fla.2000)]1; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.
Id. (footnote omitted). Where the trial judge "by his or her comments appears to have departed from the role of a neutral arbiter" such conduct in itself "may give rise to a presumption of judicial vindictiveness that would shift the burden to the State to produce affirmative evidence on the record to dispel the presumption." Id. The "general rule" is that it is improper for the judge "to advocate for a plea offer." Id. "When the trial judge becomes an advocate for a plea ... the trial judge runs the risk of departing from its critical role as a neutral arbiter." Id. at 156-57.
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