Harris v. State, 2D04-569.
Decision Date | 15 June 2005 |
Docket Number | No. 2D04-569.,2D04-569. |
Citation | 903 So.2d 363 |
Parties | Fred HARRIS, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
Fred Harris appeals his sentences for sale of cocaine and possession of cocaine following a jury trial. He argues that the trial court's imposition of a sentence which was harsher than the court's pretrial plea offer was vindictive. We agree and reverse and remand for resentencing because the State has failed to overcome the presumption of judicial vindictiveness raised by the trial court's involvement in the plea process.
On the day of Harris's trial, but before jury selection, defense counsel reminded the court that it had previously offered Harris thirty-six months for all charges that were pending at pretrial. Counsel explained that he had advised Harris to take the offer, but Harris insisted that he wanted a trial. In response to defense counsel's request that the court repeat the plea offer to Harris on the record, the court stated:
Following the jury verdict finding Harris guilty as charged, the trial court sentenced him to ten years' imprisonment for sale of cocaine and to a concurrent term of five years' imprisonment for possession of cocaine. On appeal, Harris argues that the sentences imposed by the trial court were vindictive because Harris rejected the court's offer of thirty-six months and exercised his right to trial.
Appellate courts should look at the totality of the circumstances when determining whether a defendant's constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations in which the trial court participated. Wilson v. State, 845 So.2d 142, 156 (Fla.2003). Factors that should be considered in determining whether there is a "reasonable likelihood" that the harsher sentence was imposed in retaliation for the defendant not entering a plea and instead exercising his right to trial are: (1) whether the trial judge initiated the plea discussions; (2) whether the trial judge appears to have departed from his 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...
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