source: Caselaw Access Project

author: PARIENTE, J. QUINCE, J., WELLS, J., LEWIS, J.,

license: Public Domain

text:
    Omar WILSON, Petitioner, v. STATE of Florida, Respondent. State of Florida, Petitioner, v. Dexter Byrd, Respondent.
    Nos. SC01-2083, SC01-2333.
    Supreme Court of Florida.
    April 10, 2003.

      Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Division Chief, and Barbara A. Zappi, Assistant Attorney General, Fort Lauderdale, FL; and Belle B. Schumann, Assistant Attorney General, Daytona Beach, FL, for Respondent.
    Charles J. Crist, Jr., Attorney General, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, FL, for Petitioner.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent.
   PARIENTE, J.

We have for review Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), and Wilson v. State, 792 So.2d 601 (Fla. 4th DCA 2001), which expressly and directly conflict on the issue of whether a presumption of judicial vindictiveness should arise whenever the trial judge participates in an unsuccessful plea discussion and the defendant subsequently receives a harsher sentence from the same judge after a trial or hearing. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

(1) Byrd v. State

Before the jury was brought into the courtroom for trial, the following exchange took place on the record:

COURT: Anything else before we bring in the jury?
DEFENSE COUNSEL: As I indicated to the court, Mr. Byrd asked me what the court’s inclination would be for a plea to the bench, and your honor indicated 30 years.
COURT: From what I understand from the State, and I haven’t seen the score sheet, but apparently he’s not pure driven snow and his score sheet comes out to more than 15 years.
So I think SO years is a fair offer, considering what you would do is over 100 years, and this isn’t your first robbery. Frankly, I think — Good God, he’s got numerous armed robberies.
DEFENSE COUNSEL: They all arise out of one plea.
COURT: Well, there you go. They all count, though. I think SO years is a steal. He certainly won’t get that low if he goes to trial. His record is horrendous.

(Emphasis supplied.) Byrd rejected the offer and proceeded to trial, after which he was sentenced to seventy-five years in prison.

On appeal, Byrd argued that “when the defendant rejects the court’s offer and is subsequently convicted, if the court exceeds its former offer, a presumption of vindictiveness arises and such presumption was not overcome in this case.” Byrd, 794 So.2d at 672. A majority of the Fifth District’s three-judge panel agreed, reasoning as follows:

In McDonald v. State, 751 So.2d 56, 59 (Fla. 2d DCA 1999), the court held that “when the judge has been involved in the plea negotiations and then later imposes a harsher sentence, the sentence is presumed to be vindictive.” That is a reasonable method of dispelling a defendant’s legitimate fear of retribution should he exercise his constitutional right to a jury trial. The supreme court may well have had such a presumption in mind when it required that “[a] record must be made of all plea discussions involving the court.” See [State v.] Warner, 762 So.2d [507, 514 (Fla.2000) ]. During the discussion leading up to the offer the court should state the facts relied on by it in making the offer. Those facts can then be compared with any “additional facts emerging prior to sentencing” to see if the harsher sentence is justified. In any event, if the trial court elects to sentence more harshly based on additional facts which may emerge prior to sentencing, should the judge not at least put on record what the additional facts are and how those facts changed the judge’s view? If the judge can change his or her mind merely by saying that after hearing the testimony he or she is convinced that a harsher sentence is justified, then there is no protection against vindictiveness in rejection of plea cases.
Whether we call it an unrebutted presumption or merely hold that the court has failed to explain on the record what information it had at sentencing that it did not have at the time of the plea offer and how such information would have made a difference, the result is the same. The State suggests that the court was concerned about the timing of the offense in connection with the defendant’s release from prison and was also concerned about the number of offenses. But this information was before the court at the time of its offer. It is less a reason than an excuse.

Id. at 672-73 (footnote omitted). The Fifth District then considered several remedies, including setting the sentence itself, remanding to the trial judge to make findings supportive of the more severe sentence, or remanding for resentencing before a different judge. See id. at 673. Ultimately, the Fifth District concluded that the proper remedy was to “reverse and remand to the trial court to sentence the defendant in accordance with its prior plea offer.” Id.

Judge Griffin concurred specially, agreeing with the result but rejecting the “ ‘presumption of vindictiveness’ analysis.” Byrd, 794 So.2d at 673 (Griffin, J., concurring specially). Judge Griffin concluded that the resentencing was required because the trial judge’s actions appeared to violate one of the restrictions imposed by this Court in Warner, that “a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Id. (quoting Warner, 762 So.2d at 514).

(2) Wilson v. State

In Wilson, the State alleged that Wilson violated his community control. See 792 So.2d at 601. At his final hearing, Wilson indicated that he wished to enter an open plea and admission to the violation. See id. at 601. The following exchange then occurred:

THE COURT: Has anyone promised you anything other than the fact [the] court would revoke your probation, adjudicate you guilty if you haven’t been previously adjudicated guilty, sentences you to 128 months Florida state prison with credit for time served. Do you understand that?
[DEFENSE COUNSEL]: Your Hon- or, before you pronounce sentence, I would like the court to hear from Mr. Wilson and hear from his fiancé.
THE COURT: What is the purpose of that since this is the bottom of the guidelines and I can’t go any lower than the bottom?
[DEFENSE COUNSEL]: Well, your Honor, what we would be asking, for you to reinstate Mr. Wilson.
THE COURT: I thought there was an agreement.
[DEFENSE COUNSEL]: It’s an open plea, your Honor.
THE COURT: No.
[DEFENSE COUNSEL]: He still wants to admit to the violation.
THE COURT: No. Go to a final hearing. Set it down for a final hearing. Let’s proceed.
[DEFENSE COUNSEL]: Could I have a moment, your Honor?
THE COURT: That’s all right. Court withdraws the offer.
[DEFENSE COUNSEL]: Good morning again. Emilio Benitez on behalf of Mr. Wilson on page 3 [of the court’s docket].
THE COURT: Are you ready to proceed to final hearing?
[DEFENSE COUNSEL]: Yes, your honor.
Before that, I’d like to address Mr. Wilson.
Mr. Wilson, that’s what you want to do? You want to go to a final hearing; is that correct?
[WILSON]: Yes, sir.
[DEFENSE COUNSEL]: You don’t want to accept the court’s offer of 128 months; is that correct ?
[WILSON]: No.
THE COURT: And my advice to you was the court’s offer was the bottom of the guidelines and in my opinion you should have taken it. Is that—
[WILSON]: Excuse me?
THE COURT: Okay. Let’s proceed. Let’s swear in the defendant.

Id. (alterations in the original) (emphasis supplied).

At the end of the hearing, the trial judge found that Wilson wilfully violated his community control and sentenced him to a mid-range guideline sentence of 150 months in prison. See id. On direct appeal, the Fourth District held that the case should be remanded for resentencing as a result of our decision in Heggs v. State, 759 So.2d 620 (Fla.2000), but rejected Wilson’s argument that his “original sentence was vindictive and, therefore, he should, on remand, be resentenced by a different trial judge.” Wilson, 792 So.2d at 603.

The Fourth District acknowledged that “[a] defendant may not be subjected to a more severe punishment for exercising his constitutional right to stand trial.” Id. However, the Fourth District also referred to its earlier decision in Mitchell v. State, 521 So.2d 185 (Fla. 4th DCA 1988), where it had previously explained:

Absent 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. Were it otherwise, plea bargaining would be futile.

Wilson, 792 So.2d at 603 (quoting Mitchell, 521 So.2d at 190) (alterations in the original). Based on Mitchell and the facts in Wilson’s case, the Fourth District concluded that a presumption of vindictiveness did not arise:

Here, the plea offer was given and was voluntarily rejected. The trial judge made no remarks which would give any indication that the harsher sentence was being imposed as a punitive measure for rejecting the previous offer. Although the judge reiterated the plea offer at the start of the hearing, he did not refer to it again at sentencing, or even at the resentencing.

Wilson, 792 So.2d at 603.

PRESUMPTION OF VINDICTIVENESS

The legal principle referred to as a presumption of judicial vindictiveness has constitutional roots and developed through a line of United States Supreme Court decisions beginning with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce and its companion case, Simpson v. Rice, the Supreme Court considered “what constitutional limitations there may be upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received.” Id. at 719, 89 S.Ct. 2072. The defendant in Pearce was convicted after trial and sentenced to a term of imprisonment, while the defendant in Rice pled guilty to several charges. See id. at 713-14, 89 S.Ct. 2072. Both defendants’ judgments were later reversed and both defendants were then retried, convicted, and sentenced to longer terms than previously imposed. See id.

The Supreme Court first held that “neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction.” Id. at 723, 89 S.Ct. 2072. However, the Supreme Court concluded that it would be a “flagrant violation” of the Due Process Clause of the Fourteenth Amendment “for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside.” Id. at 723-24, 89 S.Ct. 2072. Noting that the “existence of a retaliatory motivation would ... be extremely difficult to prove in any individual case,” id. at 725 n. 20, 89 S.Ct. 2072, the Court held:

[Wjhenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Id. at 726, 89 S.Ct. 2072 (emphasis supplied).

As explained by the Supreme Court in subsequent decisions, Pearce and its progeny established “a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). However, the presumption does not apply unless there is a “realistic likelihood of ‘vindictiveness,’ ” or, in other words, “the opportunities for vindictiveness ... [must] impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). Accordingly, not every increase in sentence justifies the imposition of the prophylactic rule announced in Pearce. See Blackledge, 417 U.S. at 26, 94 S.Ct. 2098.

In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the Supreme Court considered a challenge to Kentucky’s two-tier system for adjudicating misdemeanor offenses, which provided that these lesser crimes could be tried by an “inferior court” with the accused entitled to a de novo trial in a court of general jurisdiction if convicted after trial or a guilty plea. See 407 U.S. at 112-13, 92 S.Ct. 1953. The defendant argued that this system violated the Due Process Clause as interpreted by Pearce, because the trial judge conducting the de novo trial was not bound by the sentence imposed by the inferior court. See Colten, 407 U.S. at 114, 92 S.Ct. 1953. In rejecting the defendant’s argument, the Supreme Court concluded:

Our view of the Kentucky two-tier system of administering criminal justice ... does not lead us to believe ... that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky’s inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.

Id. at 116, 92 S.Ct. 1953 (emphasis supplied). The Supreme Court also indicated its concern that

the restraints called for in ... Pearce ... might, to the detriment of both defendant and State, diminish the likelihood that inferior courts would impose lenient sentences whose effect would be to limit the discretion of a superior court judge or jury if the defendant is retried and found guilty.

Id. at 119, 92 S.Ct. 1953.

In Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), upon which the State relies in this case, the Supreme Court again considered the situation where a harsher sentence was imposed after a trial and the initial sentence was the product of a guilty plea. With Smith, the Supreme Court overruled its prior decision in Rice and qualified the Pearce decision, stating:

While the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness “do[es] not apply in every case where a convicted defendant receives a higher sentence on retrial.” As we explained in Texas v. McCullough, [475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) ] “the evil the [Pearce] Court sought to prevent” was not the imposition of “enlarged sentences after a new trial” but “vindictiveness of a sentencing judge.” Because the Pearce presumption “may operate in the absence of any proof of an improper motive and thus ... block a legitimate response to criminal conduct,” we have limited its application, like that of “other ‘judicially created means of effectuating the rights secured by the [Constitution],’ ”to circumstances “where its ‘objectives are thought most efficaciously served.’ ” Such circumstances are those in which there is a “reasonable likelihood,” that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness.

Smith, 490 U.S. at 799, 109 S.Ct. 2201 (citation omitted) (alterations in the original).

The Supreme Court in Smith reasoned that “[e]ven when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial.” Id. at 801, 109 S.Ct. 2201. Therefore, a greater sentence imposed after trial than imposed after a guilty plea “is not more likely than not attributable to” judicial vindictiveness, but rather due to the greater relevant sentencing information available to the judge after a trial. Id. The Supreme Court also noted “some important developments in the constitutional law of guilty pleas” since the Rice decision, including that “[a] guilty plea may justify leniency,” that a prosecutor may offer to recommend a more lenient sentence or reduction in charges during the plea negotiation process, and that a prosecutor may threaten a defendant with increased charges if he or she does not enter a plea. Smith, 490 U.S. at 802-803, 109 S.Ct. 2201.

We conclude that Smith is not disposi-tive of the issue before us because that case involved a plea offer made by the prosecutor with no judicial participation in the plea discussions. Smith was not a case like Byrd or Wilson in which the trial judges participated in unsuccessful plea discussions. Further, although the Supreme Court broadly held that no presumption of vindictiveness applies in cases where the first sentence was imposed as the result of a guilty plea, the facts of Smith as recited by the Supreme Court indicate that the trial judge had stated the reasons for the increased sentence on the record. See 490 U.S. at 796-97, 109 S.Ct. 2201.

We also recognize that the constitutional right at issue in this case is not the defendant’s right to appeal his conviction or sentence but, rather, the defendant’s constitutional right to a jury trial. However, just as a trial judge cannot punish a defendant for exercising his or her appellate rights, see Pearce, 395 U.S. at 723-24, 89 S.Ct. 2072, “[t]he law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).” City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985) (quoting Gillman v. State, 373 So.2d 935, 938 (Fla. 2d DCA 1979)). Therefore, although a guilty plea may justify leniency, see Smith, 490 U.S. at 802, 109 S.Ct. 2201, an “accused may not be subjected to more severe punishment for exercising ... [the] constitutional right to stand trial.” Mitchell v. State, 521 So.2d 185, 187 (Fla. 4th DCA 1988).

Thus, the question we must confront is whether due process principles compel us to adopt a presumption of vindictiveness that arises whenever the trial judge participates in the plea negotiations and the defendant subsequently receives a harsher sentence after a trial or hearing. Byrd and Wilson assert that this presumption logically follows from our opinion in State v. Warner, 762 So.2d 507 (Fla.2000). We disagree.

JUDICIAL PARTICIPATION IN PLEA NEGOTIATIONS

In Warner, we considered whether it was permissible for the trial judge to participate in plea negotiations and, if so, what restrictions apply. The specific question before the Court was whether a sentence was “per se invalid where the trial court, over the State’s objection, advise[d] a defendant regarding what sentence would be imposed pursuant to a plea of guilty, and accepted] the defendant’s subsequent guilty plea.” Warner, 762 So.2d at 509.

After noting that several states, the federal system, and the American Bar Association’s Standards for Criminal Justice Relating to Guilty Pleas have expressly prohibited judicial participation in plea negotiations, and considering the pros and cons of allowing judicial participation in plea negotiations, we ultimately decided to permit limited judicial participation with certain safeguards adopted by the Michigan Supreme Court in People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1998). See Warner, 762 So.2d at 513. Therefore, although we did not prohibit judicial participation in plea negotiations, we imposed several limitations on that participation, which we concluded were necessary “to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” Id. (emphasis supplied).

The first restriction we placed on judicial participation is that the trial judge could not initiate the plea dialogue. See Warner, 762 So.2d at 513. However, the judge “may ... participate in such discussions upon request of a party” and “[o]nce involved, the court may actively discuss potential sentences and comment on proposed plea agreements.” Id. at 513-14. The question from the defendant’s perspective for the court’s consideration is: “Knowing what you know today, what do you think the sentence would be if the defendant pled guilty, as charged?” Id. at 514 (emphasis supplied).

Second, we made clear that the judge must “neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Id. (emphasis supplied). Further, although the preliminary evaluation made by the judge is not binding, the defendant who pleads guilty or nolo contendere in reliance on that evaluation has the absolute right to withdraw the plea if the judge later determines that a greater sentence must be imposed. See id. Finally, we required that a record be made of all plea negotiations involving the trial judge. See id.

We also briefly addressed the situation where a plea was either not entered or was withdrawn. Recognizing that “[a] judge’s candid statement of how a case appears at an early stage of the proceeding does not prevent the judge from deciding the case in a fair and evenhanded manner later, when additional facts become known,” we concluded that “the judge who participated in the plea bargaining process will not automatically be subject to recusal.” Id. (emphasis supplied).

It was with these restrictions and caveats that we sought to “aecommodate[ ] the competing interests involved” and allow for the benefits of judicial participation while protecting the integrity of the judicial system and the rights of defendants. Id. at 512-13. We emphasized that although the delineated safeguards “apply in those eases where a trial court agrees to be an active participant in plea bargaining discussions, the court may decline to assume such a role.” Id. at 514.

Our decision in Warner was not the first time this Court addressed the issue of judicial participation in plea negotiations. More than twenty years before Warner, this Court decided Davis v. State, 308 So.2d 27 (Fla.1975), in which we declined to condemn judicial participation in plea bargaining “per se” due to our confidence “that the trial judges of this state [would] take all necessary precautions to assure that defendants’ rights are protected by appropriate safeguards.” Davis, 308 So.2d at 29.

The Warner decision was a refinement of Davis, in which we delineated certain minimum procedural safeguards, applicable prospectively to such participation. See Warner, 762 So.2d at 510. Therefore, Warner did not, as Byrd and Wilson contend, implement a new policy in this State with respect to judicial participation in plea negotiations. Instead, Warner involved a very narrow holding that permits a trial judge to respond to a request from a defendant as to what sentence the judge would impose in exchange for a guilty plea. Warner was never intended to create a constitutional right to the sentence offered by the judge or to give the defendant an expectancy that the sentence would be no higher if the defendant decided not to plead guilty. Accordingly, we do not agree with Byrd and Wilson that our opinion in Warner mandates that a presumption of vindictiveness arise in all cases where a higher sentence is imposed after the judge has participated in the plea discussions. We conclude that “[t]he possibility of vindictiveness, found to exist in Pearce,” is not “inherent” in the process set forth in Warner. See Colten, 407 U.S. at 116, 92 S.Ct. 1953.

Further, we recognize that it is to the defendant’s advantage, in a case where there are no plea negotiations with the State, to ascertain from the judge what the sentence would be if the defendant pleaded guilty. Thus, we are mindful that imposing a presumption of vindictiveness in cases where the Warner procedures have been followed, “might, to the detriment of ... [the] defendant ... diminish the likelihood” that the trial judge would participate in plea discussions at a defendant’s request. Colten, 407 U.S. at 119, 92 S.Ct. 1953.

Nevertheless, imposition of a harsher sentence, without explanation on the record after judicial participation in the plea negotiations, does raise concerns that were not present in the United State Supreme Court opinion in Smith. As previously noted, in Smith there was no judicial participation in the plea negotiations and the trial judge stated reasons on the record for the harsher sentence. See 490 U.S. at 796-98, 109 S.Ct. 2201. Therefore, we now face the question of the appropriate analysis to utilize in determining when a presumption of vindictiveness arises. In answering this question, it is instructive to review the relevant decisions of the district courts of appeal issued both before and after Warmer.

TOTALITY OF CIRCUMSTANCES

Consistent with the United States Supreme Court cases that address the presumption of vindictiveness, the district courts of appeal were considering a totality of the circumstances analysis in determining whether the presumption arose, even before our decision in Warner. In Mitchell v. State, 521 So.2d 185 (Fla. 4th DCA 1988), defense counsel asked the judge about the possibility of a plea after the first witness testified at trial. See 521 So.2d at 186. The trial judge asked about the defendant’s record and questioned the defendant about his parole status, and the State offered to forego filing for habitual offender status and seeking a departure from the guidelines if the defendant pled. See id. The defendant rejected the trial judge’s offer of seven to nine years and elected to proceed with the trial. See id. The trial judge then made the following comments on the record:

[T]he offer made was based upon entry of a plea at this time and based upon the state’s indication that they would not be seeking — if he entered a plea now that they would not be seeking any aggravation and not be seeking a habitual offender status. Obviously, the court’s position would be — could very well be entirely different at the conclusion of the trial should appropriate motions be filed.

Id.

After the defendant was convicted, the trial judge imposed an upward departure sentence of twelve years, with written reasons supporting the departure. See id. The defendant appealed, arguing that the harsher sentence should be presumed vindictive. The Fourth District rejected the defendant’s argument, concluding that nothing in the record supported a presumption of vindictiveness. See id. at 190. The Fourth District further found that a disparity between the sentence imposed and the earlier offer did not alone support a finding of vindictiveness, and that there were no comments on the record that on their face would support a presumption of vindictiveness. See id.

In contrast to Mitchell, the facts presented in Stephney v. State, 564 So.2d 1246 (Fla. 3d DCA 1990), led the Third District to apply the presumption of vindictiveness and vacate the defendant’s sentence in that case. Stephney involved a plea offer of 364 days plus placement in a drug rehabilitation program made by the judge at the defendant’s arraignment. See 564 So.2d at 1247. The defendant rejected the plea, a jury was sworn for the trial, and the trial judge then offered the defendant three and one-half years in exchange for a guilty plea. See id. The defendant responded by asking the judge to renew its offer of 364 days. See id. The Third District’s opinion recites the following exchange that then occurred between the trial judge and defense counsel:

THE COURT: I guess he should have taken it [the original plea offer]. No. It’s not available now.
MR. KUPER [defense counsel]: Well, at this time he would be willing to ask Your Honor if you would consider some type of community control with a drug program outside—
THE COURT: No.
MR. KUPER: — due to the fact that he may have a drug problem.
THE COURT: No. He had the same drug problem the day of arraignment.
MR. KUPER: In lieu of the fact that he would have been out by now, anyway—
THE COURT: Even more so. The next time he will know to take it when I offer it at arraignment.
THE COURT: ... I only wish that the guys that sit next to the ones at arraignment, that give them all the legal advice, would be here at times like this.

Id. (emphasis supplied).

The State then presented the rest of its case, after which the trial judge again offered the defendant three and one-half years. See id. The defendant again asked for a shorter sentence in light of his drug addiction. The trial judge responded: “Absolutely not. I offered him three and a half. I will, as a gesture of goodwill, leave it open right now before you have to decide if your client is testifying, for about fifteen seconds.” Id. The trial judge withdrew the offer, the jury returned a guilty verdict, and the judge imposed a nine-year sentence, the highest permissible sentence under the guidelines. See id. at 1248. After reviewing the record and the transcript, the Third District concluded that there was no reason why the harshest possible sentence was rendered. See id. The Third District further found that the comments on the record “on their face supported] a presumption of judicial vindictiveness which was in no way dissipated by record evidence.” Id.

The Second District has also confronted the issue of when a presumption of vindictiveness arises. See, e.g., McDonald v. State, 751 So.2d 56 (Fla. 2d DCA 1999). In McDonald, the defendant rejected the State’s plea offer of 42 months’ imprisonment prior to the trial. See id. at 58. The following exchange appeared in the record:

THE DEFENDANT: No, sir, I don’t want it. I didn’t do it.
THE COURT: You know that the police officers are going to come in here and testify that you did it?
THE DEFENDANT: Yes, sir.
THE COURT: They’re going to testify they took the money from you with the serial numbers; do you understand that?
THE DEFENDANT: They didn’t get the money.
THE COURT: Well, all right. Do you understand ma'am, that if you’re convicted, if the jury finds you guilty, that you are potentially, you are facing 30 years in Florida State Prison; do you understand that?
THE DEFENDANT: Yes, sir.

Id.

During the State’s case, testimony revealed that the police officers never recovered the money. See id. During a recess in the proceedings, McDonald agreed to plead guilty to all counts charged in exchange for a forty-eight month sentence. See id. When the terms of the agreement were presented, the judge rejected the agreement without explanation. See id. After the jury returned a guilty verdict, the trial judge imposed concurrent maximum sentences, totaling thirty years in prison. See id.

The Second District reviewed the record and concluded that it “simply [did] not undermine the presumption that the extreme disparity between” the plea offer and sentence imposed was, “at least in part, the product of judicial vindictiveness.” Id. at 59. In reaching this conclusion, the Second District noted that “the pretrial colloquy plainly reflect[ed] the judge’s attempt to convince McDonald to accept the State’s” plea offer. The Second District also noted that even though the trial judge had “learned some other things about McDonald which in his discretion reasonably might have caused him to temper her punishment,” he nevertheless imposed maximum sentences. Id.

Although McDonald involved a plea offer from the State, McDonald shows that similar concerns regarding judicial vindictiveness may arise where the trial judge does not make the offer itself but, rather, becomes actively involved in an unsuccessful plea bargaining discussion between the State and the defendant. In fact, the Second District expressly rejected the State’s argument that there was no judicial participation because the State made the plea offer:

Here, the State contends that the trial judge did not participate in the plea negotiation, pointing out that the 42-month offer was made by the prosecutor. But given the purpose of the rule— to ensure that defendants are not intimidated by fear of judicial reprisal when weighing whether to waive their constitutional rights — the source of the plea offer was not as important as the fact that the judge advocated it.

Id. (emphasis supplied).

Since Warner, the Third District has continued to apply a totality of the circumstances analysis in reviewing claims of judicial vindictiveness. For example, in Charles v. State, 816 So.2d 731 (Fla. 3d DCA 2002), the Third District examined all the circumstances surrounding a rejected plea and the sentence imposed after trial, and concluded that the sentence was presumptively vindictive. The factors considered by the Third District included: (1) that the judge initiated the plea discussions; (2) that the sentence imposed was four times more severe than the original offer; (3) that at the time of the offer the judge heard all of the evidence presented by both sides, inquired as to the defendant’s criminal history, asked whether anyone had been injured during the offense, and asked whether the defendant had carried a firearm; and (4) that the record in the case was devoid of any factors that may have come out during sen-fencing that warranted the significant increase. See id. at 735. Further, the Third District indicated that the comments made by the trial judge, which included statements such as that the defendant made the “biggest mistake of his life” by rejecting the offered sentence, contributed to a finding that the presumption was appropriately applied in this case. See id. at 733-734.

On the same day Charles was decided, the Third District also decided Prado v. State, 816 So.2d 1155 (Fla. 3d DCA 2002). As did McDonald, Prado involved a plea offer from the State and again demonstrates that similar concerns regarding judicial vindictiveness may arise regardless of whether the initial plea offer comes from the State or the trial judge. In Prado, prior to the start of a second trial, the trial judge “initiated a lengthy exchange with Prado regarding the benefits of accepting the state’s four-year prison plea offer, in lieu of proceeding to trial.” 816 So.2d at 1156. Prado rejected the State’s offer, was found guilty by the jury and was sentenced to forty years in prison. See id. The Third District reviewed the transcript, noted that the sentence imposed was a tenfold increase from the plea offer, and concluded that the trial judge’s comments on their face supported a presumption of vindictiveness. See id. at 1157.

The above cases illustrate the tension between the realistic expectation recognized in Smith that “a guilty plea may justify leniency,” 490 U.S. at 802, 109 S.Ct. 2201, and the constitutional imperative that a defendant should not be penalized by the judicial system for not accepting a plea and exercising his or her constitutional right to proceed to trial. See Del Percio, 476 So.2d at 205. In order to balance these competing constitutional principles, we decline to adopt a rigid rule, as urged by Byrd and Wilson. We conclude that a totality of the circumstances review, as the Third District applied in Charles and Prado, is the more 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.

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 not pleading guilty and instead exercising his or her right to proceed to trial. See Smith, 490 U.S. at 799, 109 S.Ct. 2201. 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 Warner; (2) whether the trial judge, through his or her comments on the ree-ord, 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.

As regards factors (1) and (2), if the judge participates in the plea negotiations beyond what is contemplated by Warner, or by his or her comments appears to have departed from the role of a neutral arbiter, then these actions alone 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. We recognize that when the judge indicates a likely sentence in response to a request by the defendant and later imposes a harsher sentence after a trial or hearing, there is always potential for the appearance of vindictiveness. Simply put, the same flexibility that prosecutors have to actively engage in plea negotiations does not extend to judges. That is why the requirements of Warner must always be strictly followed.

Furthermore, as a general rule it is not the judge’s role to advocate for a plea offer. When the trial judge becomes an advocate for a plea — either one offered by the judge or by the State — the trial judge runs the risk of departing from its critical role as a neutral arbiter. The trial judge must make clear that the sentence is based on what the judge presently has before him or her, and must caution that there is no guarantee that this same sentence will be imposed if the defendant elects to go to trial. Further, if the defendant elects not to accept the offer and the judge later imposes a harsher sentence, the trial judge should consider placing the reasons for the greater sentence on the record. As Judge Sorondo explained in Prado:

[T]he fact that a trial judge expresses an inclination to accept a state plea offer, does not mean that he or she will be bound to impose the same sentence after hearing the trial, if the evidence raises concerns that were not perceptible from the usually abbreviated representations made to the court during the plea bargaining process. Factors such as the nature of the defendant’s prior convictions, the degree of violence employed by the defendant during the commission of the crime, the sophistication with which the charged offense was committed, and/or the physical or psychological suffering endured by the victim(s), are some factors that might lead the court to increase what it originally considered to be an acceptable sentence. Nevertheless, a judge who, having been advised of the details of the case and having been actively involved in an unsuccessful plea bargaining discussion, wishes to impose a post-trial sentence more severe than that contemplated by his or her plea negotiations, would be wise to explain his or her reasons for the'greater sentence in order to dispel any appearance of vindictive sentencing.

816 So.2d at 1164 (Sorondo, J., concurring) (footnote omitted). These additional precautions will serve to dispel any “apprehension of ... a retaliatory motivation on the part of the sentencing judge,” Pearce, 395 U.S. at 725, 89 S.Ct. 2072, thereby protecting the integrity of the judicial system and the rights of the defendants. See Warner, 762 So.2d at 512-13.

APPLICATION OF THE TOTALITY OF THE CIRCUMSTANCES ANALYSIS TO BYRD AND WILSON

Because Byrd involves a trial judge who participated in the plea discussions, the first factor to consider is whether the judge complied with the requirements of Warner. The record in this case indicates that the trial judge did not initiate the plea discussions, but simply responded to a question from Byrd about a possible plea. However, we conclude, as did the Fifth District, that the trial judge exceeded the limits of Warner by both urging Byrd to accept the plea offer of thirty years and stating that if Byrd chose to go to trial he “certainly” would not get that low. See Byrd, 794 So.2d at 672. These comments implied that the sentence imposed would hinge on future procedural choices, specifically Byrd’s exercise of his right to trial.

Further, there is an extremely large disparity between the offered thirty-year sentence and the seventy-five year sentence imposed. See id. Finally, the Fifth District’s opinion indicates that the trial judge had “shown no reason why its pretrial evaluation of the appropriate sentence ... was in error.” Id. at 673. These factors, taken together under a totality of the circumstances analysis, give rise to a presumption of judicial vindictiveness that the State failed to rebut.

Turning to Wilson, this case involves a violation of probation where the trial judge offered to sentence Wilson to 128 months if he pled guilty. When Wilson indicated that he wanted to put on testimony from his fiancée before the judge imposed sentence, the trial judge withdrew the “offer.” Subsequently, the trial judge commented before the start of the revocation hearing, that “the court’s offer was the bottom of the guidelines and in my opinion you should have taken it.” Wilson, 792 So.2d at 602. This comment indicates that the judge may have unintentionally stepped outside the bounds of Warner and departed from the role as a neutral arbiter. This comment also implies that the judge had already decided that Wilson was not going to receive the bottom of the guideline sentence previously offered no matter what occurred during the hearing, and that Wilson would be penalized for exercising his right to a hearing on his violation of probation charge. This implication is heightened by the fact that immediately after the hearing, which was held shortly after the plea discussions, the judge imposed a 150-month sentence without explanation. Moreover, the record lacks any facts that explain the increased sentence.

In Wilson’s case, it is not simply the increased sentence that gives rise to an unrebutted presumption of vindictiveness. Rather, it is the judge’s comment that Wilson should have accepted the offer, coupled with the increased sentence imposed shortly thereafter, and the absence of any explanation for the increase that give rise to the unrebutted presumption of vindictiveness.

REMEDY

The Fifth District held that the appropriate remedy in Byrd was to enforce the rejected plea offer. The Fifth District considered several options including resentencing Byrd to an appropriate sentence itself, remanding to the trial judge to make findings supportive of the more severe sentence, or remanding for resentencing before a different judge, but found each of these options lacking in some respect. Byrd, 794 So.2d at 673. We agree that neither setting Byrd’s sentence itself nor remanding to the trial judge to make findings on the record was appropriate once Byrd’s sentence was found to be presumptively vindictive. However, we disagree that Byrd should be resentenced in accordance with the prior plea offer. Once Byrd rejected the plea offer, he had no constitutional right to the offered sentence.

We are aware that the Fifth District was concerned that remanding for resentencing before a different judge “would ignore the problem created by the initial [plea] offer” because the resentenc-ing “judge would not know what prompted the original offer and thus would not know what new facts may have been discovered after the plea offer which might justify a harsher sentence.” Byrd, 794 So.2d at 673. However, the reason for the original plea offer and any “new facts” that may have come to light are relevant only when considering the defendant’s claim that the sentence imposed was vindictive and should be vacated. The information has no bearing on a resentencing proceeding because the resentencing places the defendant in the same position he or she would have been in if the plea discussions had never occurred — before a neutral arbiter to receive a lawful sentence. Further, this remedy is consistent with our decision in Warner, in which we anticipated that failed plea discussions may, under some circumstances, require the recusal of the trial judge who participated in the discussions. See 762 So.2d at 514 (stating that when a plea is not entered “the judge who participated in the plea bargaining process will not automatically be subject to recusal”). Accordingly, in cases where an unrebutted presumption of judicial vindictiveness arises, we conclude that the appropriate remedy is resentencing before a different judge.

CONCLUSION

For the reasons discussed above, we approve in part and quash in part the Fifth District’s decision in Byrd. We approve the Fifth District’s decision to the extent that it holds that an unrebutted presumption of vindictiveness arose in that case. However, we quash the Fifth District’s decision to the extent that it holds that Warner requires a presumption of vindictiveness in all cases where the trial judge participates in an unsuccessful plea discussion and the defendant subsequently receives a harsher sentence from the same judge after a trial or hearing, and to the extent it holds that the proper remedy is to remand for sentencing in accordance with the rejected plea offer. Rather, we conclude that resentencing before a different judge is the appropriate remedy when a presumption of vindictiveness is unrebut-ted.

In Wilson, we conclude that a presumption of vindictiveness arose that was unre-butted. Accordingly, we quash the Fourth District’s decision in Wilson to the extent that it holds that no unrebutted presumption of vindictiveness arose. As in Byrd, the appropriate remedy is a resentencing before a different judge.

We remand these cases to the district courts of appeal for further proceedings consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., QUINCE, J., and SHAW, Senior Justice, concur.

QUINCE, J., concurs specially with an opinion.

WELLS, J., concurs in part and dissents in part with an opinion, in which LEWIS, J., and HARDING, Senior Justice, concur.

LEWIS, J., concurs in result in part and dissents in part with an opinion.

QUINCE, J.,

concurring specially.

I concur in the conclusions reached by the majority because the presumption of vindictiveness is the natural result when judges are allowed to initiate or participate in plea bargaining with the defendants. I concurred in the result only in our decision in State v. Warner, 762 So.2d 507 (Fla.2000), because it is my firm belief that trial judges should not participate in the plea bargaining process. The prosecutor is charged with the responsibility of determining whom to prosecute and what charges should be brought against particular defendants. See Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); State v. Bloom, 497 So.2d 2 (Fla.1986). The determination of the charges will in turn determine the defendant’s sentencing exposure.

Plea bargaining often involves a give and take between the defendant and the prosecuting authority concerning the issue of the final charges that the defendant will be held to answer for. Thus, it is the prosecutor who should be bargaining with the defendant. Once a bargain has been reached, the trial judge must then determine whether, under the facts of a given case, the agreed upon bargain should be accepted.

These cases are prime examples of what happens when the trial judge, the neutral arbiter, enters into the plea bargaining process.

WELLS, J.,

concurring in part and dissenting in part.

I concur in Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), only as to the resen-tencing. I find that, under the specific facts of this case, the defendant should be resentenced because the trial judge’s statements do appear to be in conflict with this Court’s decision in State v. Warner, 762 So.2d 507, 514 (Fla.2000). As recognized by Judge Griffin in her concurring opinion in the district court, “In fairness to the trial court, Warner had not been issued at the time of the taking of Mr. Byrd’s plea.” I would remand to the trial judge for a resentencing with an explanation of the harsher sentence if the trial judge continues to find that sentence appropriate. I see no reason to substitute another trial judge.

I dissent from the majority’s adoption of a presumption of vindictiveness. Clearly, there is no constitutional requirement for such a presumption. I believe that the majority’s decision will severely undermine the reasoning of the Warner decision and will result in trial judges wisely not making any pre-plea statements. This will be to the detriment of defendants.

I dissent from disapproving Wilson v. State, 792 So.2d 601 (Fla. 4th DCA 2001).

LEWIS, J., and HARDING, Senior Justice, concur.

LEWIS, J.,

concurring in result in part and dissenting in part.

I concur in the result the majority presents with regard to Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), only as to resentencing. I respectfully dissent with all other aspects. In my view, the majority opinion becomes involved unnecessarily with presumptions and the single concurring opinion misconstrues this Court’s holding in State v. Warner, 762 So.2d 507 (Fla.2000). In Warner, we held:

[Jjudicial involvement [in the plea bargaining process] must be limited to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice. The trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party.

Id. at 513 (citations and internal quotation marks omitted). Under Warner, while judges may have limited participation in the plea bargaining process, they may not be a party to the actual plea the defendant must weigh. Judges are to act as information centers only. The limited Warner holding was intended to allow a judicial officer to provide information to a defendant and answers to his or her questions. Clearly, the judge may not initiate the bargaining process or make statements that could in any way be construed as actual negotiation. The judge must, at all times, remain a neutral arbiter of justice.

The majority relies upon a presumption of vindictiveness test, applicable when a judge becomes involved in plea negotiations and the defendant is subsequently sentenced to a more extensive term of imprisonment than he would have received under the terms of the original plea agreement. See majority op. at 156. I assert that such a test is unnecessary because following the rule pronounced in Warner, a judicial officer may not actually be involved in plea negotiations. Any involvement beyond answering a defendant’s questions and providing information is a clear violation of Warner. The concurring opinion adopts the presumption theory and proceeds to state, “[T]he presumption of vindictiveness is the natural result when judges are allowed to initiate or participate in plea bargaining with the defendants.” Concurring op. at 160. However, under Warner, unquestionably, judges may not initiate or participate in plea bargaining with a defendant. Judges must only play a limited informational role in any negotiation process that unfolds.

      . For purposes of oral argument, on our own motion, we consolidated these two cases. On our own motion, we now consolidate these cases for disposition in this opinion.

      . In Heggs, we held unconstitutional a statute that included a new version of the sentencing guidelines, thus requiring resentencing of certain defendants who were sentenced under the unconstitutional version. See 759 So.2d at 628.

      . For this reason the Fourth District's reliance only on Smith in Morales v. State, 819 So.2d 831 (Fla. 4th DCA 2002), for rejecting a presumption of vindictiveness is misplaced.

      . The Court identified several advantages to allowing judicial participation in plea bargaining negotiations, including directness, simplicity, decorum, and procedural uniformity. See Warner, 762 So.2d at 512.

      . The concerns noted by the Court included those that "are inherent in the plea bargaining model itself, but may be magnified when the powerful 'neutral' in the system becomes embroiled in the negotiation process” (i.e., the defendant’s perception of coercion) and those that "appear to be unique to judicial involvement beyond that contemplated by rule 3.171, Florida Rules of Criminal Procedure” (i.e., perception that the trial judge will not be able to fairly rule on the voluntariness of the plea). Warner, 762 So.2d at 511.

      . Judge Sorondo’s concurring opinion contains a lengthy recitation from the pertinent parts of the trial transcript. See Prado, 816 So.2d at 1159-62 (Sorondo, J. concurring). At one point during the discussion of the State’s plea offer, Prado stated that he did not believe the trial judge could sentence him to forty years if he was found guilty. See id. at 1160. The judge replied: "Don’t be so sure.” Id. A few moments later the trial judge stated: "If you feel you're a gambler and a player and want to take a chance, knock yourself out. We’ll give you a trial. And once the dice are thrown — .” Id. After trial, during the sentencing proceeding, the trial judge reiterated that Prado made a mistake by choosing to proceed to trial:
      Going to trial is something that we do here but the consequences, of course, are if you lose, you might lose big. In this particular case the defendant made an enlightened choice that was not a particularly good one. He turned down the fairly reasonable plea....
      And, he made another life choice when he said to me you will not give me 40 years in state prison. He was wrong about going to trial; he was wrong about that sentence because that’s exactly what he's going to get.

        Id. at 1162.

      .Although Warner dealt only with a case where the trial judge, over the State’s objection, advised the defendant regarding the sentence that would be imposed pursuant to a plea of guilty, the principles and concerns of Warner expressed in these first two factors have broader application any time the trial judge participates in plea discussions.

      . Where the totality of the circumstances does not give rise to a presumption of vindictiveness, the burden remains upon the defendant to prove actual vindictiveness. See Smith, 490 U.S. at 799, 109 S.Ct. 2201.

      . However, as Judge Sorondo correctly observed, Warner does not
      forbid[ ] a judge from becoming involved in a discussion wherein the accused is asked whether he is aware of the state’s pending plea offer and his or her maximum exposure if convicted at trial.... A recurring post-conviction claim is that trial counsel was ineffective in that he or she failed to communicate a plea offer made by the state or failed to advise the defendant of his full exposure if convicted at trial. In order to address this potential problem, many trial judges have adopted the practice of asking the attorneys immediately before trial, in the defendant's presence, whether a plea offer has been extended and whether the same has been communicated to the defendant.

        Prado, 816 So.2d at 1158 n. 2 (Sorondo, J., concurring).

      . The trial judge presiding over the resen-tencing should comply with Florida Rule of Criminal Procedure 3.700(c)(1) by becoming "acquainted with what transpired at the trial, or the facts, including any plea discussions, concerning the plea and the offense.”


author: LEWIS, J.

text:
    SWIRE PACIFIC HOLDINGS, INC., Appellant, v. ZURICH INSURANCE COMPANY, Appellee.
    No. SC02-613.
    Supreme Court of Florida.
    April 10, 2003.

      Elliot H. Scherker, Marlene K. Silver-man, and Elliot B. Kula of Greenberg Traurig, P.A., Miami, FL, for Appellant.
    Janet L. Brown of Boehm, Brown, Seac-rest & Fischer, Maitland, Florida; and Thomas W. Brunner, Leslie A. Platt, and Gary P. Seligman of Wiley, Rein & Fielding LLP, Washington, DC, for Appellee.
    Ronald L. Kammer of Hinshaw & Culbertson, Miami, FL, for Insurers’ Technology Litigation Roundtable, Complex Insurance Claims Litigation Association and National Association of Mutual Insurance Companies, Amici Curiae; and the American Insurance Association, Amicus Curiae.
   LEWIS, J.

We have for review three questions of Florida law certified by the United States Court of Appeals for the Eleventh Circuit to be determinative of a cause pending in that court and for which there appears to be no controlling Florida precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const.

Swire Pacific Holdings (“Swire”) is the owner and developer of a high-rise condominium building in Miami, Florida, while Zurich American Insurance Company (“Zurich”) is the successor in interest to Zurich Insurance Company. See Swire Pacific Holdings, Inc. v. Zurich Ins. Co., 284 F.3d 1228, 1229 (11th Cir.2002). The Court of Appeals for the Eleventh Circuit, in its opinion certifying three questions for this Court’s review, detailed the relevant facts and procedural history:

Swire purchased from Zurich a builder’s risk policy, effective February 24, 1997, through February 24, 1999, which was drafted in relevant part by Zurich. The policy insured the Two Tequesta Point Condominium Project, located in Miami, Florida. Swire is one of the insureds under the policy.
In March of 1998, the City of Miami’s Building Department informed Swire that Richard Klein, the structural engineer on the condominium project, was being investigated in connection with certain design projects for failure to comply with appropriate governmental building codes and ordinances. Swire’s agent, CHM Consulting Engineers, performed a peer review of Klein’s structural work on the project and the potential claim of damage arising from that structural work. While the peer review was underway, the City of Miami halted the issuance of a certificate of occupancy. The peer review revealed numerous errors and omissions in the project that had to be corrected.
As a result of the design defects, Swire altered the plans and construction to bring the building into compliance with appropriate governmental building codes. Swire spent approximately $4.5 million in costs to correct the structural deficiencies and filed a claim with Zurich under its builder’s risk policy seeking coverage for those costs. Zurich denied coverage on the ground that Swire’s claim dealt “with the cost of correcting a design defect and not any physical loss or damage resulting from the defect.”
In October of 1999, Swire filed a two-count lawsuit against Zurich. Count I sought declaratory and monetary relief to determine Swire’s rights to insurance coverage under the Builder’s Risk Policy. Count II sought recovery of money damages arising out of Zurich’s failure to provide coverage for loss incurred in correcting the structural deficiencies of the building. Zurich filed an answer containing affirmative defenses. The fourth one asserted that Swire’s loss was specifically excluded from coverage due to the Design Defect Exclusion Clause of the policy.
Swire sought partial summary judgment on Count I of its complaint and on Zurich’s fourth affirmative defense, arguing that Swire was entitled as a matter of law to a declaration that the Design Defect Exclusion Clause invoked by Zurich does not apply to costs incurred by Swire under the policy’s Sue and Labor Clause. Swire alternatively argued that the Design Defect Exclusion Clause does not exclude any costs for work that necessarily damages or destroys portions of the insured property as a result of required remediation or repair of defective property. Zurich moved for summary judgment in its favor on the grounds that the Design Defect Exclusion Clause bars coverage for Swire’s claim, the Design Defect Exclusion Clause applies to sue and labor expenses, and the Sue and Labor Clause at issue applies only to actual, covered loss or damage anyway.
The district court granted summary judgment in favor of Zurich. It concluded that Swire’s loss was an excluded loss under the policy’s Design Defect Exclusion Clause. The court also held that the policy’s Sue and Labor Clause did not provide coverage for otherwise excluded losses. Relying on Southern California Edison Co. v. Harbor Insurance Co., 83 Cal.App.3d 747, 148 Cal.Rptr. 106 (1978), the court reasoned that sue and labor expenses are reimbursable only to the extent that they are incurred for the benefit of the insurer in mitigating or preventing a covered loss. The court held that the answer to the question of whether expenses are incurred for the benefit of the insurer lies not in whether the insured’s actions may potentially benefit the insurer in some way, but in whether the insured’s actions “correlate to an excluded loss.” Because the actions taken by Swire correlated to the excluded loss of repairing design defects, the court found that the costs incurred by Swire were not incurred for the benefit of Zurich and thus were not reimbursable under the Sue and Labor Clause. The district court stated that it was unnecessary to reach the issue of whether the Sue and Labor Clause applies only when an actual, covered loss has occurred.

Id. at 1229-31. The Eleventh Circuit noted that because this case presents several issues of first impression under Florida law, it “could guess how the Florida Supreme Court would decide this case, but it would only be a guess.” Id. at 1234. The court then certified the following questions to this Court:

1. Whether the policy’s Design Defect Exclusion Clause bars coverage for the cost of repairing the structural deficiencies in the condominium building;
2. If the first question is answered in the affirmative, whether the policy’s Sue and Labor Clause applies only in the case of an actual, covered loss;
3. If the second question is answered in the negative, whether the policy’s Sue and Labor Clause covers the cost of repairing the structural deficiencies in the condominium building.

Id. Based on the analysis below, we answer the first two questions in the affirmative and, therefore, find it unnecessary to address the third.

Initially, we note that when analyzing an insurance contract, it is necessary to examine the contract in its context and as a whole, and to avoid simply concentrating on certain limited provisions to the exclusion of the totality of others. Here the general nature of the risk assumed and contract with which we are dealing is a builder’s risk policy. Builder’s risk insurance is a type of property insurance coverage, not liability insurance or warranty coverage. The purpose of this type of insurance is to provide protection for fortuitous loss sustained during the construction of the building. If a described loss occurs, the insurer generally pays the cost of removing the debris, salvaging material and equipment, and repairing the damaged property. However, those losses for which coverage is provided are clearly dependent upon the specific language of the builder’s risk policy. With this in mind, we turn to the first certified question.

First, the policy contains a coverage clause which provides:

INSURING AGREEMENT
Subject to the limitations, exclusions, terms and conditions contained herein, this Policy insures, in respect of occurrences happening during the term of this Policy, against: Physical loss or damage to the property insured, except as excluded hereunder.

Excluded from this coverage, however, are losses related to design defects. The design defect exclusion clause at issue in the Swire-Zurich policy excludes coverage for:

Loss or damage caused by fault, defect, error or omission in design, plan or specification, but this exclusion shall not apply to physical loss or damage resulting from such fault, defect, error or omission in design, plan or specification.

In considering this clause we must follow the guiding principle that this Court has consistently applied that insurance contracts must be construed in accordance with the plain language of the policy. See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000); Prudential Property & Casualty Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993). Further, we consider that “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous.” Auto-Owners, 756 So.2d at 34. An ambiguous provision is construed in favor of the insured and strictly against the drafter. See id. In State Farm Mutual Automobile Insurance Co. v. Pridgen, 498 So.2d 1245 (Fla.1986), this Court announced the rule to be followed in the interpretation of exclusionary clauses in insurance policies:

[Exclusionary provisions which are ambiguous or otherwise susceptible to more than one meaning must be construed in favor of the insured, since it is the insurer who usually drafts the policy. See Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979). However, “[o]nly when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction is the rule apposite. It does not allow courts to rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.” Id.

Id. at 1248; see also Deni Assocs. of Florida, Inc. v. State Farm Fire & Casualty Ins. Co., 711 So.2d 1135, 1138 (Fla.1998) (following Pridgen rule for interpretation of exclusionary clauses). Notably, simply because a provision is complex and requires analysis for application, it is not automatically rendered ambiguous. See Eagle American Ins. Co. v. Nichols, 814 So.2d 1083, 1085 (Fla. 4th DCA 2002). Finally, we have consistently held that “in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners, 756 So.2d at 34; see also § 627.419(1), Fla. Stat. (2002) (“Every insurance contract shall be . construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto.”).

In State Farm Fire & Casualty Co. v. CTC Development Corp., 720 So.2d 1072 (Fla.1998), we reasoned, “The lack of a definition of an operative term in a policy does not necessarily render the term ambiguous and in need of interpretation by the courts.” Id. at 1076. Despite this clear rule, Swire asserts that the lack of a definition of the terms “loss or damage” in the first part of the design defect exclusion clause and the terms “physical loss or damage” in the ensuing loss provision of the design defect exclusion clause creates an ambiguity. Swire fails, however, to provide precedent from any court, or even conflicting definitions for the terms, to support its contention that an ambiguity exists, and relies instead upon the blanket statement that Zurich’s failure to define the terms requires this Court to interpret the terms in Swire’s favor.

The design defect exclusion clause in the Swire-Zurich Builder’s Risk Policy is not ambiguous. “Loss or damage” as used in the first prong of the clause clearly means loss caused directly by the design defect. This type of loss is not covered under the policy. Further, the only reasonable definition for the term “physical loss or damage” as used in the ensuing loss provision of the clause is damage that occurs subsequent to, and as a result of, a design defect. This type of loss is covered under the policy. Under these interpretations, each provision is given its full meaning and operative effect, as required by Florida law. While the clause could have been written many different ways to produce the result, the intent of the contract clause regarding the meaning of the design defect exclusion can be clearly determined and understood, and thus no ambiguity exists.

Having determined no ambiguity exists, next we address the issue of whether the repairs made by Swire, although resulting from a design defect, may nonetheless be compensated under the ensuing loss provision of the design defect exclusion clause. It is not disputed that Swire expended $4.5 million to correct construction flowing from design defects discovered after Swire hired a peer review of the work performed by its structural engineer. As noted above, the first prong of the exclusionary clause precludes recovery when the loss is caused directly by the design defect. The issue therefore becomes whether Swire’s expenses in effectuating repairs are excepted from the exclusion under the ensuing loss provision; in other words, whether Swire repaired a physical loss resulting from the design defect so as to escape the exclusionary clause and have reimbursement under the policy.

Several cases outside of Florida have addressed this issue. In Laquila Construction, Inc. v. Travelers Indemnity Co. of Illinois, 66 F.Supp.2d 543 (S.D.N.Y.1999), a construction company sought recovery under a builder’s risk policy where improper concrete had been used in the construction of a high-rise building. See id. at 544. As a result, it was necessary to replace the concrete, and further, certain fixtures, such as heating and cooling ducts and plumbing units, required removal and later reinstallation. See id. The insurance policy contained a clause excluding the “[c]ost of making good faulty or defective workmanship or material.” Id. However, the construction company asserted that the expenses incurred in replacing the improper concrete were within the second prong of the clause which provided: “[B]ut this exclusion shall not apply to physical damage resulting from such faulty or defective workmanship or material.” Id. The court rejected the insured’s position and determined that the construction company’s claim fell “squarely into the exclusion clause simply as a cost incurred to make good the defective concrete.” Id. at 545. The court held that the claim was nothing more than an attempt to recover for the excluded expenses of repairing its defective workmanship. See id. at 546. The court noted that an exception to an exclusion should not be construed, interpreted, or applied so broadly that it would essentially swallow the exclusion, see id. at 545, and that the construction company’s interpretation would result in coverage for virtually all instances of defective workmanship. See id. at 546; see also Allianz Ins. Co. v. Impero, 654 F.Supp. 16 (E.D.Wash.1986) (holding ensuing loss provision was not applicable because claim was solely for cost of correcting deficiencies in construction not covered under exclusionary clause).

Other courts have voiced similar conclusions. In Narob Development Corp. v. Insurance Co. of North America, 219 A.D.2d 454, 631 N.Y.S.2d 155 (1995), the court held that the collapse of a wall, caused by the plaintiffs defective workmanship, was not covered under a policy that contained the following clause: “We won’t cover any loss caused by or resulting from error, omission or deficiency in workmanship or materials as respects the cost of making good such error, omission or deficiency. However, we will cover resulting physical loss caused by or to the Covered Property.” Id. at 454, 631 N.Y.S.2d 155. Noting the ensuing loss exception is not applicable if the ensuing loss was directly related to the original excluded risk, the court denied coverage because no collateral or subsequent damage occurred as a result of the collapse of the wall. See id.

In Schloss v. Cincinnati Insurance Co., 54 F.Supp.2d 1090 (M.D.Ala.1999), water rot occurred due to either the faulty installation or design of a roof. The applicable insurance contract provision provided that it did not cover “loss caused by wear and tear, gradual deterioration, rust, corrosion, fungi, mold, dry or wet rot.... But we do insure ensuing covered loss unless another exclusion applies.” Id. at 1094. The court interpreted this clause to provide that when a non-covered loss occurs, only a separate loss that occurs as a result of the non-covered loss would be protected. See id. at 1094-95. Applying this provision, the court determined that the expenses incurred in replacing the roof were a part of the cost of repairing the non-covered loss, not a separate ensuing loss, and therefore the expenses were not covered. See id. at 1095; see also Vermont Elec. Power Co. v. Hartford Steam Boiler Inspection & Ins. Co., 72 F.Supp.2d 441, 445 (D.Vt.1999) (holding that an ensuing loss is one that occurs subsequent to the excluded loss; if original loss was also considered an ensuing loss, the exception would swallow the exclusion).

Swire’s sole claim here is an attempt to recover the expenses incurred in repairing a design defect. No ensuing loss resulted to invoke the exception to the exclusionary provision. Under the precise terms of this Builder’s Risk Policy, the expenses claimed are clearly excluded under the first provision of the design defect exclusion clause, which states the policy does not cover “[l]oss or damage caused by fault, defect, error or omission in design, plan or specification.” No loss separate from, or as a result of, the design defect occurred. Therefore, we conclude that under the- clear contractual provisions along with the authority of the numerous courts noted above, which we find persuasive, Swire is not entitled to recover the expenses associated with repairing the design defect. To hold otherwise would be to allow the ensuing loss provision to completely eviscerate and consume the design defect exclusion. The first certified question is, therefore, answered in the affirmative — the insurance policy’s design defect exclusion clause bars coverage for the cost of repairing the structural deficiencies in the condominium building. This contract does not operate as a warranty for faulty workmanship and should not be transformed into a guarantee against design and construction defects.

In a similar manner, and, we believe logically, as to the second certified question, it is clear that the language contained in the Sue and Labor clause of the Swire-Zurich policy requires that an actual covered loss must have occurred or be in process before the builder can recover under this provision for the expenses claimed. The Sue and Labor clause in the Swire Zurich Builder’s Risk Policy, which is inserted only in the conditions section of the policy, provides:

SUE AND LABOR
In case of loss or damage, it shall be lawful and necessary for the INSURED ... to sue, labor and travel for, in and about the defense, safeguard and recovery of the insured property hereunder or any part thereof without prejudice to this insurance, nor shall the acts of the INSURED or the Company, in recovering, saving, and preserving the property INSURED in case of loss or damage be considered a waiver or an acceptance of abandonment. The expenses so incurred shall be borne by the INSURED and the Company, proportionately to the extent of their respective interests.

(Emphasis supplied.) Notably, this is not a coverage clause and this provision says nothing concerning payment for prevention efforts. It is inappropriate for Swire to attempt to add language to the contract which changes its effect in an attempt to secure coverage. Here, under the plain language of the provision, sue and labor expenses are stated to be recoverable only in the case of loss or damage, not simply when one asserts that the expenses are to prevent a loss. Swire points to three cases from the Fifth Circuit Court of Appeals to support its argument that it should be able to recover under the Sue and Labor clause because of its prevention efforts. See Blasser Bros., Inc. v. N. Pan-American Line, 628 F.2d 376 (5th Cir.1980); Cont’l Food Prods., Inc. v. Ins. Co. of N. Am., 544 F.2d 834 (5th Cir.1977); Reliance Ins. Co. v. The Escapade, 280 F.2d 482 (5th Cir.1960). In each of those cases, the court examined a sue and labor clause and explained:

An insured has the duty to exercise the care of a prudent, uninsured owner to protect insured property so as to minimize or prevent the loss for which the insurer would be liable. The purpose of the sue and labor clause is to reimburse the insured for those expenditures which are made primarily for the benefit of the insurer to reduce or eliminate a covered loss.

Blasser Bros., 628 F.2d at 386 (emphasis supplied). See also Cont’l Food, 544 F.2d at 837 n. 1 (“Since an assured has the duty toward his underwriter to exercise the care of a prudent uninsured owner to protect insured property in order to minimize or prevent the loss from the occurrence for which the underwriter would be liable under the policy, the clause undertakes to reimburse the assured for these expenditures which are made primarily for the benefit of the underwriter either to reduce or eliminate a covered loss altogether.”); Escapade, 280 F.2d at 488 (same).

While the sue and labor clauses in each of those three cases were nearly identical to one another, and were substantially similar to the Swire-Zurich clause, it is important to note that factually, the cases differed significantly from the case before this Court. In each of those cases, a covered loss had already occurred or was in the process of occurring, and the insureds were attempting to be reimbursed under the theory that they had mitigated further loss. This differs substantially from the situation presented here, where no loss had occurred, no loss was in progress, and Swire contended only that its actions prevented a covered loss from ever arising. Those courts were analyzing the sue and labor clauses from the point of view of only that of mitigation, not prevention. Therefore, such analysis is unpersuasive as to the insertion of the subject of preservation into the clause in this contract where a covered loss never occurred.

Furthermore, Wolstein v. Yorkshire Insurance Co., 97 Wash.App. 201, 985 P.2d 400 (1999), is, in our view, also unpersuasive. There, the parties agreed that the sue and labor clause in the contract applied to prevention efforts. See Wolstein, 985 P.2d at 409. In Florida, coverage under an insurance contract is defined by the language and terms of the policy. See Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 359 (Fla. 4th DCA 2001). Here, Zurich correctly contends that the Sue and Labor clause in the Swire-Zurich policy is specifically applicable only after an actual loss has occurred or is occurring. Because Swire was acting to prevent a potential collapse of the building, and no actual loss had occurred, the $4.5 million expended by Swire is not recoverable under the policy’s Sue and Labor clause. Therefore, the second certified question is answered in the affirmative — the policy’s Sue and Labor clause applies only in the case of an actual, covered loss. Any other conclusion would result in the Sue and Labor clause becoming the primary coverage provision of this contract without regard to the content of the contract or the coverage it was designed to provide.

The reasoning suggested by Swire is certainly logical, to the effect that the preventive measures may have conferred a benefit upon the insurance company. If the Sue and Labor clause had been worded differently or if it had included language concerning the prevention of loss, the conclusion may have been different. However, we must address the specific contract and specific facts before us to render our analysis.

Because we have responded to the second question in the affirmative, it becomes unnecessary to address the third certified question. We conclude our analysis that under the language of the Swire-Zurich Builder’s Risk Policy, the money expended by Swire was unquestionably to repair a design defect, and the expenses claimed do not constitute an ensuing loss to be an exception to the exclusionary provision. Therefore, we respond to the first certified question in the affirmative — the insurance policy’s design defect exclusion clause bars coverage for the cost of repairing the structural deficiencies in the condominium building. The second question is also answered in the affirmative. The Sue and Labor clause at issue here clearly requires that an actual loss occur before the Sue and Labor clause is applicable. It is unnecessary for us to address the third certified question. Having answered the first two certified questions, we return this case to the United States Court of Appeals for the Eleventh Circuit for further proceedings.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

      . The clause itself reads, "Loss or damage caused by fault, defect, error or omission in design, plan or specification....” (Emphasis supplied.)

      . The sue and labor clause in Blasser Bros. read:
      In case of any loss or misfortune, it shall be lawful and necessary to and for the Assured, his or their factors, servants and assigns, to sue, labor and travel for, in and about the defense, safeguard and recovery of the goods and merchandise, or any part thereof, without prejudice to this insurance; nor shall the acts of the Assured or this Company, in recovering, saving and preserving the properly insured, in case of disaster, be considered a waiver or an acceptance of abandonment. The reasonable expenses so incurred shall be borne by the Assured and the Company in proportion as the sum hereby insured bears to the whole value at risk.
      628 F.2d at 386 n. 16.


author: PER CURIAM.

text:
    Inquiry Concerning a Judge, No. 99-325, re Sheldon SCHAPIRO.
    No. SC01-2419.
    Supreme Court of Florida.
    April 10, 2003.
    The Honorable James R. Wolf, Chair, Judicial Qualifications Commission, Tallahassee, FL; Thomas C. MacDonald, Jr., General Counsel, Lansing C. Scriven, Special Counsel of Lansing C. Scriven, P.A., and Michael K. Green, Co-Special Counsel of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, FL, for Judicial Qualifications Commission, Petitioner.
    J. David Bogenschutz of Bogenschutz & Dutko, P.A., Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

We review the recommendation of the Judicial Qualifications Commission (JQC) that Judge Sheldon Schapiro be disciplined. We have jurisdiction. See art. V, § 12, Fla. Const. In a stipulation with the JQC, Judge Schapiro admits engaging in inappropriate behavior in court that is unbecoming a member of the judiciary, brings the judiciary into disrepute, and impairs the citizens’ confidence both in the integrity of the judicial system and in Judge Schapiro as a judge.

The stipulation, which quotes the notice of formal charges directed to Judge Scha-piro, sets forth the facts as follows:

Charge No. 1 — In violation of Canon 1, Canon 2A, and Canon 3B(4), in approximately 1996, you chastised an attorney, Joseph Dawson, for allegedly speaking in your courtroom by stating, ‘Why do I always have to treat you like a school child?” or words to that effect. When Mr. Dawson responded that you routinely treat everyone in your courtroom like a school child, you ordered him out of the courtroom. Since that time, Mr. Dawson has routinely sought your recu-sal and you have granted those requests.
Charge No. 2 — In violation of Canon 1, Canon 2A, and Canon 3B(4), in May, 1998, you ordered Denise Neuner, an assistant state attorney, to appear before you and try a criminal case although Ms. Neuner had previously contacted your chambers to explain she had a severe medical condition and had been ordered by her physician to bed rest because of the possibility she might have pneumonia.
Charge No. 3 — In violation of Canon 1, Canon 2A, and Canon 3B(4), in approximately March or April 1998, you attempted to force Greg Rossman, an assistant state attorney, to try a case that was assigned to another assistant state attorney. When Mr. Rossman responded that the practice of the State Attorney’s Office was for each assistant to try only his or her own cases, you proceeded to scream at Mr. Rossman and tell him that the case in question was a “nothing case,” which he should be prepared to try with no advance preparation. You further admonished Mr. Rossman by making the following sarcastic remarks:
THE COURT: All right, you want to waste my time, there will come a time I warn you, when I’m going to be tied up in something and you will have a speedy pending and my time will not be available. You are squandering the Court’s time.
Charge No. 4 — -In violation of Canon 1, Canon 2A, and Canon 3B(4), you have routinely berated and unnecessarily embarrassed attorneys for allegedly talking in your courtroom when those attorneys were either not talking at all or speaking in appropriately low tones of voice concerning legitimate business of the court (e.g. state attorneys and defense counsel conferring with one another concerning plea negotiations), as evidenced by the following examples:
a. You chastised and unnecessarily raised your voice at Ginger Miranda, an assistant public defender, as she attempted to confer with her client who was a prisoner in custody. Specifically, you said to Ms. Miranda, “Psst. Hey you. I’m sick and tired of the noise you make in my courtroom” or words to that effect. When Ms. Miranda explained that she was trying to discuss a plea offer with her client, you continued to berate her. Ms. Miranda then apologized to which you sarcastically replied, “Oh yeah, you’re sorry,” or words to that effect.
b. In approximately September, 2000, as Deborah Carpenter, an assistant public defender, was waiting in open court for her case to be called, another public defender began speaking with her. You then said, “Ms. Carpenter, if you say one more word, I’m going to have you removed from the courtroom” or words to that effect. When the other assistant public defender interceded and stated, “Judge, I’m sorry, it was me,” you ignored her statement and responded, “I don’t want to hear another word out of you Ms. Carpenter” or words to that effect.
c. On another occasion, you ordered Bradley Weissman, an assistant state attorney, to leave the courtroom because you believed he was talking, although Mr. Weissman was not talking.
d. In a similar episode, during the summer of 1999, you had previously ordered everyone in the courtroom to be quiet. Dennis Siegel, an assistant state attorney, was among the attorneys in the courtroom at the time. You then turned to Mr. Siegel and said, “Mr. Siegel, I told you to be quiet” or words to that effect. Mr. Siegel responded that he had not been talking. Despite his denial, you continued to insist that you saw Mr. Sie-gel talking.
Charge No. 5 — This charge is dismissed.
Charge No. 6 — -In violation of Canon 1, Canon 2A, and Canon 3B(4), several years ago, as a criminal defense attorney was making an argument in a sexual battery case, you cut him off and said, “Do you know what I think of your argument?” or words to that effect, at which time you pushed a button on a device that simulated the sound of a commode flushing.
Charge No. 7 — In violation of Canon 1, Canon 2A, and Canon 3B(4), in a case involving a defendant driving with a suspended driver’s license approximately four years ago, Louis Pironti, an assistant public defender at the time, advised you during a sidebar conference that he might need a continuance in order to secure an expert witness. The sidebar was held in a small room behind the bench commonly known as the woodshed among attorneys familiar with your courtroom (hereinafter “backroom”). Instead of simply denying the motion, you became agitated and responded by saying to Mr. Pironti, “You’re going to try this mother fu_ing case.” You then returned to the bench and threw the docket down on a desk.
Charge No. 8 — In violation of Canon 1, Canon 2A, Canon 3B(4), and Canon 3B(5), approximately 4J/z years ago, as Shari Tate, a female assistant state attorney, was arguing a motion to revoke bond, you summoned Ms. Tate to the backroom behind your bench and told her that she needed to emulate the style of male attorneys when addressing the court because male attorneys did not get as emotional about their cases as the female attorneys did. As a result of this experience, Ms. Tate advised you that she would never go to the backroom with you again without a court reporter being present.
Charge No. 9 — In violation of Canon 1, Canon 2A, and Canon 3B(4), in another incident involving Ms. Tate when she was eight months pregnant, she was hospitalized because of pregnancy complications on the third day of a trial over which you presided. As a result of her hospitalization, Ms. Tate requested a continuance of the trial. You denied the continuance and further advised Ms. Tate that she should get another prosecutor from her office to complete the trial. When Ms. Tate advised your chambers that “substituting” counsel was not feasible in that no other assistant state attorney was familiar enough with the case to step in her place, you, or your chambers, advised Ms. Tate that if she were not in court the following morning, you would dismiss the case. As a result, Ms. Tate left the hospital against her doctor’s orders in order to complete the trial before you.
Charge No. 10 — In violation of Canon 1, Canon 2A, and Canon 3B(4), in 1999, you presided over a bond hearing where a motorcyclist had killed a child and left the scene. The child’s mother and neighbor came to the bond hearing, which was approximately two days after the incident and before the child was buried. After you made a preliminary determination that the defendant was entitled to bond, the assistant state attorney advised you that the mother of the victim was present and wanted to address the court. You responded by saying, “What do I need to hear from the mother of a [deceased] [n] kid for? All she will tell me is to keep the guy in custody and never let him out” or words to that effect. The victim’s mother heard your sarcastic remarks and was then afraid to address the court.
[n]l The original Notice of Formal Charges alleged that Judge Schapiro used the word “dead” instead of “deceased.” Judge Schapiro denies that he used the word “dead;” rather, he contends he used the word “deceased.” Regardless of the actual verbiage used, however, Judge Scha-piro admits that his statement was inappropriate under the circumstances.
Charge No. 11 — In violation of Canon 1, Canon 2A, and Canon 3B(4), you have fallen into a general pattern of rude and intemperate behavior by needlessly interjecting yourself into counsel’s examinations of witnesses; embarrassing and belittling counsel in court; and questioning the competence of counsel by making remarks such as, “What, are you stupid?”

Inquiry Concerning a Judge, No. 99-325, Sheldon Schapiro, Stipulation at 1-5 (Fla. Judicial Qualification Comm’n report filed Nov. 22, 2002).

Based on the violations agreed to in the stipulation, the JQC found the following regarding discipline:

[T]he interests of justice and public welfare will be adequately served by the following discipline, which it hereby recommends to this Court:
(1) Public Reprimand to be delivered personally to [Judge Schapiro] before the Supreme Court of Florida;
(2) [Judge Schapiro’s] participation in psychological/behavioral therapy with an emphasis on sensitivity training by a qualified health care professional until such professional has certified, in writing, that such treatment is no longer necessary; and
(3) Public apology to the citizens of Broward County in the form attached hereto as Exhibit A.

Inquiry Concerning a Judge, No. 99-325, Sheldon Schapiro, Findings and Recommendation of Discipline at 1-5 (Fla. Judicial Qualification Comm’n report filed Nov. 22, 2002). The JQC considered in mitigation “the fact that [Judge Schapiro] has expressed remorse for his conduct and voluntarily undergone psychological evaluation and treatment and commits to continue such treatment as an express condition of the Stipulation.” Id. at 1.

We agree with the JQC’s determination that Judge Sheldon Schapiro has violated the Code of Judicial Conduct. We conclude that Judge Schapiro has clearly undermined the public’s confidence in and respect for both the integrity of the judicial system and Judge Schapiro as a judge. These violations are extreme in their seriousness, in their number, and in the length of time over which they occurred. To undermine public confidence and respect by such serious violations strikes at the very roots of an effective judiciary, for those who are served by the courts will not have confidence in and respect for the courts’ judgments if judges engage in this egregious conduct. Were it not for Judge Schapiro’s efforts to participate in behavioral therapy, this Court would have sanctioned Judge Schapiro in a substantially more severe manner. Judge Schapiro is expressly notified that if his efforts do not consistently continue as agreed to in the stipulation, this Court will severely sanction Judge Schapiro’s misconduct.

In view of the stipulation and the ongoing treatment program, we approve the recommendation of a public reprimand and a continual treatment program but also order Judge Schapiro to, within thirty days of the filing of this opinion, write and mail personal letters of apology to those individuals identified in the above-quoted portion of the stipulation. Judge Schapiro is directed to appear before this Court for the administration of a public reprimand on June 4, 2003, at 9 a.m. Judge Schapiro shall pay the costs of these proceedings. See In re Hapner, 737 So.2d 1075, 1077 (Fla.1999).

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.