Mendez v. State

• Decision Date: 19 February 2010
• Docket Number: No. 2D08-4047.,2D08-4047.
• Citation: 28 So.3d 948
• Parties: Maximiuano MENDEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

28 So.3d 948

Maximiuano MENDEZ, Appellant, v. STATE of Florida, Appellee.

No. 2D08-4047.

District Court of Appeal of Florida, Second District.

February 19, 2010.

James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Maximiuano Mendez appeals his sentence of five years in prison imposed after the revocation of his probation for the offense of felony battery. We reverse and remand for further proceedings.

Mendez originally pleaded no contest to the offense of felony battery in exchange for five years' probation. An affidavit of probation was then filed charging Mendez with violating his probation by failing to report to the probation office upon his release from jail. At the beginning of the violation hearing, defense counsel stated:

And, Judge, just for the record, I did explain to my client what the State's offer was. I explained to him that the Court's one-day offer was not extended to him today.

The Court offered, as you may recall, three and a half years, the State offered him four. He understands that the maximum he could receive is five years. He does not score for prison if you look at the sentencing scoresheet.

With that in mind, he did appear to understand, to me at least, what the interpreter was telling him. He indicated that he did wish to have a hearing. . . .

The trial court confirmed with Mendez that Mendez was rejecting the State's offer of four years and proceeding to an evidentiary hearing. After the evidentiary hearing, the trial court found Mendez in violation of his probation, adjudicated him guilty, and sentenced him to five years in prison.

During the pendency of this appeal, Mendez filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), claiming that his five-year sentence is punishment for exercising his right to an evidentiary hearing on the charged violation of probation. He stated that he sought a transcript of the plea discussions involving the trial court but found that no such record exists. The trial court did not rule on Mendez's motion; therefore, it is deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B), (b)(1)(B).

On appeal, Mendez asserts the same challenge to his sentence. He contends that a presumption of vindictiveness arose and that it was not rebutted by the record. He argues that he is entitled to resentencing by a different judge. Mendez recognizes that no objection was raised below at the sentencing hearing but asserts that the issue was preserved in his rule 3.800(b)(2) motion.

We first note that rule 3.800(b)(2) is not the proper mechanism for Mendez's challenge to his sentence; such an error is not a "sentencing error" because it occurs during the sentencing process and is not an error in an order entered as a result of the sentencing process. See Jackson v. State, 983 So.2d 562, 572, 574 (Fla.2008); Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009).¹ Our analysis does not end here, however, because imposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal. See McDonald v. State, 751 So.2d 56, 58 (Fla. 2d DCA 2000).

"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." Harris v. State, 903 So.2d 363, 366 (Fla. 2d DCA 2005) (citing Wilson v. State, 845 So.2d 142, 156 (Fla.2003)).

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a "reasonable likelihood" that the harsher sentence was imposed in retaliation for the defendant['s] not pleading guilty and instead exercising his or her right to proceed to trial. The other factors that should be considered 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, 514 (Fla.2000)]; (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.

Wilson, 845 So.2d at 156 (footnote and citation omitted). "A presumption of vindictiveness arises where `there is a "reasonable likelihood" that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.'" Cambridge v. State, 884 So.2d 535, 537 (Fla. 2d DCA 2004) (quoting Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). The term vindictive—when used in the context of a claim of vindictive sentence—"is a term of art which expresses the legal effect of a given course of action, viewed objectively, and does not imply any personal animosity between the court and the defendant." Harris, 903 So.2d at 366.

In this case, the trial court's plea offer appears to have been made off the record, in violation of the supreme court's holding in Warner that "[a] record must be made of all plea discussions involving the court." 762 So.2d at 514. Without a complete record of the plea discussions, this court has no way of knowing with certainty the extent to which the trial court was involved in such discussions. See Harris, 903 So.2d at 366 (reversing sentence because an unrebutted presumption of vindictiveness arose but recognizing that this court had "no way of evaluating the `totality of the circumstances' of the court's plea offer" where the trial court made the original plea offer off the record,...