Hernandez v. State
| Decision Date | 15 August 2014 |
| Docket Number | No. 2D12–2786.,2D12–2786. |
| Citation | 145 So.3d 902 |
| Parties | Andres HERNANDEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
Andres Hernandez, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
Andres Hernandez challenges his convictions and sentences for burglary of an unoccupied dwelling, petit theft, and obtaining money from a pawnshop by fraud. Hernandez entered open no contest pleas to the charges, and sentencing was put off for sixty days in order to allow Hernandez to provide substantial assistance to the State in the form of information about his codefendant and other crimes. At sentencing, the trial court found that Hernandez had not provided substantial assistance and sentenced him to fourteen years on the burglary, five years on the fraud, and time served on the theft. Because the totality of the instant circumstances create an unrebutted presumption of vindictive sentencing, we reverse.1
After entering no contest pleas without reserving the right to appeal any dispositive issues, Hernandez is limited to raising the following issues on appeal: (1) lack of subject matter jurisdiction; (2) violation of plea agreement, if preserved by a motion to withdraw plea; (3) voluntariness of plea, if preserved by motion to withdraw plea; or (4) a sentencing error, if preserved. SeeFla. R. App. P. 9.140(b)(2)(A)(ii).
He raises a sentencing error, arguing that the fourteen-year sentence imposed on the burglary count is the result of vindictive sentencing. 2 There is a presumptionof vindictiveness where, when considering the totality of the circumstances, there is a “reasonable likelihood” that “[j]udicial participation in plea negotiations followed by a harsher sentence” is the result of retaliation for the defendant's exercising a certain right. Mendez v. State, 28 So.3d 948, 950 (Fla. 2d DCA 2010) (quoting Wilson v. State, 845 So.2d 142, 156 (Fla.2003)).
[F]actors that should be considered include but are not limited to[ ](1) whether the trial judge initiated the plea discussions with the defendant ...; (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. (quoting Wilson, 845 So.2d at 156).
Here, Hernandez bases his claim of vindictive sentencing on the following exchange at the plea hearing:
....
THE COURT: So let me ask you this question. Do you want to—do you want to have the sentencing issue resolved today and accept the five years that the State had previously offered? Because if you want to know what is going to happen, then I will take your plea and I will sentence you to the five years that the State had previously offered you. If you want to—and that's without help, and then if you do provide assistance, then you can come back in and ask to have it mitigated within 60 days. But that's the only way that I can tell you that you can be assured of what is going to transpire at sentencing. If you want to accept the State's original offer, I will honor it.
Hernandez opted to enter an open plea and wait thirty days for sentencing, during which period he planned to provide substantial assistance to law enforcement in the hope of getting a bottom of the guidelines sentence (which was 28.575 months). When he returned for sentencing, the trial court determined that he had not provided substantial assistance to law enforcement and imposed the fourteen-year term on the burglary and the concurrent five years on the fraud charge.
Applying the factors discussed in Mendez, the trial court clearly initiated plea negotiations at the plea hearing by offering Hernandez the State's original five-year deal if he would agree to being sentenced that day. Furthermore, Hernandez's...
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...constitutionally impermissible sentencing factor would be a crime with which the defendant was never charged. See Hernandez v. State, 145 So.3d 902, 905 (Fla. 2d DCA 2014). "[W]hen a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant's du......
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