author: CORTIÑAS, Judge.

text:
    The STATE of Florida, Appellant, v. Manuel CALDERON, Appellee.
    No. 3D05-2326.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.

      Bill McCollum, Attorney General, Orlando, and Maria T. Armas, Assistant Attorney General and Meredith L. Balo, Assistant Attorney General, for appellant.
    Larry R. Handfield, Miami, for appellee.
    Before COPE, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   CORTIÑAS, Judge.

The Appellee, Manuel Calderon, was charged with first degree murder and conspiracy to commit first degree murder. He was acquitted on the murder count but was convicted of conspiracy to commit first degree murder. Calderon challenged his conviction by arguing that the conspiracy prosecution was barred by the statute of limitations. The trial court agreed with Calderon and dismissed the conspiracy count. The State appeals the trial court’s ruling. We reverse.

The crime for which Calderon was charged occurred in February 1992. He was indicted in 2000. The statute in effect in 1992, at the time the crime was committed, provided for a four-year statute of limitations on the conspiracy charge, a first degree felony. § 775.15(2)(a), Fla. Stat. (1991). The statute also granted the state an additional three years to bring charges against a defendant who was “continuously absent from the state or has no reasonably ascertainable place of abode or work within the state” during the original limitations period. § 775.15(6), Fla. Stat. (1991). At the hearing on the motion to dismiss, Calderon argued that the State did not establish his absence from the state. The trial court did not address this argument in its order and, instead, assumed that the three-year extension applied. The trial court stated that it would, at a later time, conduct a hearing on the applicability of the three-year extension of time. This should be done on remand.

Effective October 1, 1996, the Florida Legislature amended section 775.15 and provided that a prosecution for “a felony that resulted in a death” may be commenced at any time. Ch. 96-145, § 1, at 130, Laws of Fla. (1996). The legislature further provided that the amendment “shall apply to pending cases the prosecution of which has not been barred prior to this date.” Id. § 2. The State argues that this amendment applies to Calderon’s case because the offense was committed and not time-barred prior to the effective date of the amendment and, therefore, his prosecution was not time-barred. Calderon contends that this amendment does not apply to him because there were no charges filed against him as of October 1, 1996 and, as such, there was no pending case against him as of that date.

In construing a statute, courts must look to the purpose of the statute as well as the language used by the legislature. Here, the purpose of the amendment, as evidenced by its language, was to remove the statute of limitations for felonies resulting in a death, as was already the case for capital felonies and life felonies. Ch. 96-145, § 1, at 130, Laws of Fla. (1996). Clearly, the legislature intended for this amendment to apply to cases arising after October 1, 1996, the effective date of the amendment. Id. However, the legislature also intended for this amendment to apply to another category of cases, those cases pending and not yet time-barred as of October 1, 1996. Id. § 2. Both parties concede that this language evidences a legislative intent for the amendment to apply retroactively, although the parties disagree about the scope of this retroactive application.

Section 2, of chapter 96-145, states:

This act shall take effect October 1, 1996, and shall apply to pending cases the prosecution of which has not been barred prior to this date.

Ch. 96-145, § 2, at 130, Laws of Fla. (1996)(emphasis added). Calderon contends that the plain meaning of “pending cases” indicates that the legislature only intended for the amendment to apply retroactively to cases in which charges had been filed by October 1, 1996. The State argues that the legislature intended for the amendment to apply retroactively to any crimes which had occurred by October 1, 1996, and were not yet time-barred, regardless of whether charges were brought by October 1,1996. The trial court agreed with Calderon’s interpretation of “pending cases.”

Because we are required to assume that the legislature does not write meaningless provisions, we must interpret “pending cases” in a way that will give meaning to the above phrase, consistent with legislative intent. Koile v. State, 934 So.2d 1226, 1233 (Fla.2006)(recognizing the tenet that “courts should avoid readings [of statutes] that would render part of a statute meaningless” and rejecting party’s interpretation of a statute where such an interpretation would render the section expanding the definition of victim meaningless (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 456 (Fla.1992))).

The trial court’s interpretation of “pending cases” would render section 2 of chapter 96-145 meaningless. If the legislature only meant for the amendment to apply to cases in which charges were already filed and were not already time-barred, the amendment would have virtually no retroactive application. For example, assuming charges were filed in a case on September 30, 1996, the day before the effective date of the amendment, by all definitions, this case would be pending on October 1, 1996, when the amendment became effective. However, if the offense had already been time-barred on September 30, 1996, the amendment could not revive the expired statute of limitations as that would constitute an ex post facto law. Stogner v. California, 539 U.S. 607, 632-33, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). Thus, retroactive application of the amendment can only occur if the offense was not time-barred on September 30, 1996. Moreover, assuming an offense that had not yet been time-barred on September 30, 1996, the prosecution of such an offense before the original (pre-1996 amendment) statute of limitations expired would be timely without any need for retroactive application of the 1996 amendment. These examples serve to illustrate that interpreting “pending cases” to mean cases already filed and not yet time-barred would not allow for retroactive application.

The only meaningful interpretation of the above phrase is to define “pending cases” to include crimes which have occurred by October 1, 1996, the prosecution of which are not yet time barred by October 1, 1996, regardless of whether charges were filed by October 1, 1996.

[A] literal interpretation of a statute need not be given when to do so would lead to an unreasonable conclusion. A departure from a literal interpretation of the statute may be merited when there are “cogent reasons” for believing that the letter of the law does not accurately disclose the legislative intent.

Doe v. Dep’t of Health, 948 So.2d 803, 32 Fla. L. Weekly D95 (Fla. 2d DCA Dec.27, 2006) (citation and internal citation omitted).

Moreover, our reading of the statute is entirely supported by legislative history. See Fla. H.R. Comm, on CJ, CS for HB 23 (1996) Staff Analysis at 2, 3 (final May 20, 1996)(on file with Florida State Archives); Fla. H.R. Comm, on CJ, HB 23 (1965) Staff Analysis at 5 (rev. Mar. 5, 1996)(on file with Florida State Archives); Fla. H.R. Comm, on CJ, HB 23 (1995) Staff Analysis at 3 (rev. Nov. 15, 1995)(on file with Florida State Archives); Fla. H.R. Comm, on CJ, HB 23 (1995) Staff Analysis at 1 (Nov. 7, 1995)(on file with Florida State Archives). The original bill, House Bill 23, stated only that “[t]his act takes effect on October 1, 1996.” Fla. HB 23, § 2 (1995). However, the Committee specifically recommended to the legislature that, if it intended for the amendment to have retroactive application, the legislature should indicate that the amendment applies to pending cases not yet time-barred as of the effective date. Fla. H.R. Comm, on CJ, HB 23 (1995) Staff Analysis at 5 (Nov. 7, 1995)(on file with Florida State Archives). In making this recommendation, the Committee specifically explained that “[cjourts have held that an amended statute of limitation which applies retroactively does not violate the ex post facto prohibition if it clearly indicates that it retroactively applies to pending cases not time-barred by the old statute.” Id. The Committee then directly cited the Fourth District’s decision in Scharfschwerdt v. Kanarek, 553 So.2d 218 (Fla. 4th DCA 1989), and advised that “[t]he bill should clarify whether it would apply to cases pending and not time-barred on the effective date, or only to those cases that arise on or after the effective date.” Id.

In Kanarek, the defendant was charged in 1989 with two counts of lewd and lascivious assault upon a child and one count of sexual battery arising from incidents that occurred in 1983. Kanarek, 553 So.2d at 219. Under the statutes in effect at that time, lewd and lascivious assault upon a child had a three-year statute of limitations and sexual battery had a four-year statute of limitations. Id. A legislative amendment extending the statute of limitations for both crimes became effective in January 1985. Id. That amendment provided that the statute of limitations would not run until a minor victim reached sixteen years of age or until the crime is reported to law enforcement, whichever is earlier. Id. The amendment further provided that: “This subsection applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before December 31, 1984.” Ch. 84-550, § 1, at 38, Laws of Fla. (1995). Noting that the statute of limitations under the prior statute had not expired at the time of the amendment, the Fourth District found that this language was sufficient indicia of clear legislative intent for the 1985 amendment to apply retroactively. Kanarek, 553 So.2d at 220. In reaching this holding, the Fourth District provided the following rule of law for the legislature to follow:

[T]he legislature can amend statutes of limitation to apply retroactively without running afoul of the constitutional ex post facto prohibition if it (a) does so before prosecution is barred by the old statute, and (b) clearly indicates that the new statute is to apply retroactively to cases pending when it becomes effective.

Id. (citations omitted)(emphasis added). Notably, the Fourth District used the term “cases pending” even though the facts before them did not demonstrate that there was a case pending in the traditional sense of the word, as no charges had been filed at the time of the 1985 amendment. Clearly, the use of the words “cases pending” in Kanarek referred to criminal offenses that had not been charged and were not yet barred by the applicable statute of limitations. Thus, Kanarek’s reference to “cases pending” was meant to address a much broader category of crimes, that is, all offenses not barred by the statute of limitations.

Here, in providing for retroactive application of the 1996 amendment, the legislature utilized the precise term coined in Kanarek, “cases pending,” in its final version of the bill, Committee Substitute for House Bill 23, which was passed into law. Ch. 96-145, § 2, at 130, Laws of Fla. (1996); see also Fla. H.R. Comm, on CJ, HB 23 (1996) Staff Analysis at 5 (rev. Mar.5, 1996)(on file with Florida State Archives)(explaining that “HB 23, in specifying its effective date, did not clarify whether it would apply to felony cases pending and not time-barred on that effective date, or only to those cases that arise on or after the effective date. Courts have held that an amended statute of limitation which applies retroactively does not violate the ex post facto prohibition if it clearly indicates that it retroactively applies to pending cases not time-barred by the old statute [Scharfschwerdt v. Kanarek, 553 So.2d 218 (Fla. 4th DCA 1989) ]. CS/HB 23 clarifies the effect of the bill by specifying that it applies to felony cases pending and not time-barred on the effective date.”) (brackets in original).

Because we find the intent of the legislature was for this amendment to apply retroactively, as evidenced by the legislative history, and because narrowly defining “pending cases” to only include cases in which charges have already been timely filed would not effectuate this legislative intent, we find that “pending cases” includes crimes committed by, and not time-barred on, October 1, 1996, regardless of whether charges were filed on or before October 1, 1996. Accordingly, we reverse the order of the trial court and remand for further proceedings consistent herewith.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Christopher Lee ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4972.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Carey Haughwout, Public Defender and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006).

STEVENSON, C.J., KLEIN and MAY, JJ., concur.


text:
    Jordan Tyler AGNEW, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4011.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his conviction and sentence on two counts of attempted armed robbery while wearing a mask, one count of attempted burglary of a dwelling with an assault or battery while armed, and two counts of aggravated assault with a firearm and mask. With regard to the burglary of a dwelling with an assault or battery while armed count, he argues that the trial court erred in adjudicating him guilty of a charge greater than that to which he pled. He does not suggest any error in the sentence. The State agrees that the defendant pled to the lesser charge of attempt, but suggests we affirm and remand the case to correct the record. We agree.

The defendant pled to the charge of attempted burglary of a dwelling with an assault or battery. The record inaccurately reflects that he pled to the charged crime of burglary of a dwelling with an assault or battery. We therefore affirm, but remand the case to the trial court to correct the scrivener’s error.

Affirmed, and Remanded.

STONE, FARMER and MAY, JJ, concur.

      . He also raised an issue concerning the denial of his motion to withdraw his plea. Considering that the defendant has now withdrawn that motion, the issue is moot.


text:
    Daniel R. TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2561.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Donna P. Levine of the Law Office of Donna P. Levine, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Yaluntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Moe v. State, 944 So.2d 1096 (Fla. 5th DCA 2006) (holding the state is not required to produce the source code for the Intoxilyzer 5000 because that information is not within its possession or control).

SHAHOOD, GROSS and TAYLOR, JJ., concur.


text:
    Fronchi Levon BLOUNT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4772.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

WARNER, POLEN and SHAHOOD, JJ., concur.


text:
    Carl PALOMINO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-0948.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Carl Palomino, in proper person.
    Christian D. Lake (Tallahassee), Assistant General Counsel, Justice Administrative Commission, for respondent.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

We treat this appeal as a petition for writ of certiorari and deny the same.


author: SCHWARTZ, Senior Judge.

text:
    PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. Felix GONZALEZ and Francina M. Pavan, Appellees.
    No. 3D06-1489.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.

      Hayt, Hayt & Landau and Erik S. Kar-datzke, for appellant.
    Bailey & Dawes and Guy B. Bailey, Jr., Coconut Grove, for appellees.
    Before GERSTEN and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The plaintiff appeals from an order quashing substituted service of process secured, purportedly under section 48.031(1)(a), Florida Statutes (2006), by leaving a copy of the summons and complaint at her home with a woman who was the mother of one defendant and the mother-in-law of the other. The trial court’s ruling was correct and is affirmed because an undisputed affidavit demonstrated that neither of the defendants had lived at that address for five years, and thus that it was not their “usual place of abode” as the statute requires. See State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145 (1940); Alvarez v. State Farm Mut. Auto Ins. Co., 635 So.2d 131 (Fla. 3d DCA 1994); see also DeArmas v. E & W Body Shop Supplies, Inc., 622 So.2d 72 (Fla. 2d DCA 1993); cf. Small v. Chicola, 929 So.2d 1122 (Fla. 3d DCA 2006). That the defendants actually received the complaint and summons does not affect the result. See Hovarth v. Aetna Life Ins. Co., 634 So.2d 240 (Fla. 5th DCA 1994); Moschetta v. Atl. Nat’l Bank of Broward, 540 So.2d 166 (Fla. 4th DCA 1989).

Affirmed.

      . Section 48.03l(1)(a) provides:
      Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.


text:
    Joseph DIXON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1386.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Darville v. State, 912 So.2d 63 (Fla. 4th DCA 2005).


author: CORTINAS, Judge. ROTHENBERG, J.

text:
    James WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1028.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.

      Bennett H. Brummer, Public Defender, Miami, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, Orlando, and Richard L. Polin, Assistant Attorney General, Miami, and David R. Ruffner, Certified Legal Intern, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

The defendant, James Wilson (“Wilson”), appeals on the ground that he was subjected to vindictive sentencing when the trial court imposed a ninety year sentence for a probation violation after he was offered, and indicated his acceptance of, a guilty plea which would have resulted in sixty-seven months incarceration. We agree.

“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.” Wilson v. State, 845 So.2d 142, 156 (Fla.2003) (citation omitted).

The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of [State v.] Warner [, 762 So.2d 507 (Fla.2000) ]; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. (footnotes omitted). “[T]o determine whether a defendant’s constitutional right to due process of law was violated by the imposition of an increased sentence after the unsuccessful plea discussions in which the trial judge participated,” the court must consider the totality of the circumstances. Id. (approving Charles v. State, 816 So.2d 731 (Fla. 3d DCA 2002) and Prado v. State, 816 So.2d 1155 (Fla. 3d DCA 2002)) (“For example, in Charles v. State ... 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.”). If the totality of the circumstances gives rise to a presumption of vindictiveness, the burden shifts to the State “to produce affirmative evidence on the record to dispel the presumption.” Id.

Presumption of Vindictiveness Arises from the Totality of the Circumstances

Here, the record reflects the following circumstances. In 1999, Wilson was originally sentenced to eight years of probation after pleading guilty to two counts of lewd acts in the presence of a person less than sixteen years of age. While on probation, Wilson was charged with four additional counts of lewd exhibition in the presence of a person less than sixteen years of age. Wilson pled guilty, both to the four charges and to the violation of probation, his probation was revoked, and he was sentenced to eighteen months in prison, followed by eight years of probation.

On May 26, 2005, Wilson was charged with exposure of sexual organs after two of his neighbors reported seeing him outside naked. Wilson was immediately taken into custody, and was tried in Brevard County, where he resided. Wilson was convicted in Brevard County Court and sentenced to 364 days incarceration. The conviction was affirmed on appeal by the Fifth District.

Wilson was then brought to Miami-Dade County to face charges that he violated his probation by committing a new crime and he appeared in Miami-Dade Circuit Court for a probation violation hearing. When Wilson’s case was called, the court inquired whether Wilson would accept a plea or whether he would like to proceed with a violation hearing. Wilson indicated that he would like to accept the State’s plea offer of sixty-seven months, but that he would also like to make a statement to the court. The trial court indicated that it was only interested in hearing a plea or testimony on the probation violation. Again, the court asked whether Wilson would like to accept the plea and defense counsel responded that there was a plea. However, when the court asked Wilson directly if he wanted to accept the plea, the following colloquy ensued:

THE DEFENDANT: I want to — if I can say one thing, Your Honor? You have a sign, “We who labor here seek only the truth.” If I give you the truth — my truth is that I’m not guilty of doing what they say.”
THE COURT: Fine. I have witnesses. I’ll take testimony and I’ll decide. If you are right and then if I agree with you, you walk out a free man. How is that? Let’s go. Raise your right hand. Put on your first witness, state.

Defense counsel advised the court that a violation hearing was not necessary and that the defendant simply wanted to “express something to the Court.” The trial court responded, “I already heard it. He says he is not in violation of his probation. He is not guilty. If that’s how he feels, I’m going to give him a hearing.” Wilson and his attorney were given time to confer, and, when they came back before the court, Wilson indicated he was willing to accept the plea, although he still felt he was innocent of the underlying crime. The following colloquy ensued:

THE COURT: Mr. Wilson, let me tell you something. The underlying charge is gone. It is a [fait] accompli as we call it. It is a done deal. The only question is: Were you on probation?
THE DEFENDANT: Yes.
THE COURT: Did you violate probation is the issue.
THE DEFENDANT: Yes
THE COURT: Whether or not rightfully or wrongfully on probation, you were on probation, right?
THE DEFENDANT: Right, and I understand the position this court is in and I will admit it.
THE COURT: That’s the only question. The only question is: Did you violate the probation?
THE DEFENDANT: According to the Brevard County Court I did.
THE COURT: Okay. That’s the only question.

Wilson then tried to explain that he thought his conviction for exposure of sexual organs was the result of retaliation from his neighbors because they did not want a sex offender to live in their neighborhood.

THE COURT: I don’t know what you are saying, but the charge that I’m looking at that was filed in the court in January of this year, you were charged with exposure of sexual organs. So, you are saying you didn’t do any of that?
THE DEFENDANT: No, ma’am. I didn’t do any of that.
MS. HILLYER: The state is revoking the 67 months.
THE COURT: All right. Let’s go, rock and roll. Swear in your witness.
THE DEFENDANT: Your Honor, excuse me. You don’t have to do this.
MS. HILLYER: The state is revoking the 67 months, so you know—
THE COURT: You either want it or you don’t.
THE DEFENDANT: They are revoking the 67 months?
THE COURT: It’s the bottom of the guidelines.
THE DEFENDANT: We’ll go with this [sic] 67 months.
THE COURT: Then raise your right hand and be sworn or affirmed,
THE DEFENDANT: Can I say one thing?
THE COURT: No. The only person who is going to say anything is this probation officer or me.
THE DEFENDANT: Judge, I am going to file a Motion for Ineffective Assistance' — •
THE COURT: No.
THE DEFENDANT: Go with the—
THE COURT: I’m going to take testimony from this man and if I need to continue it, I will. Sit down. Yes, sir. Raise your right hand and be sworn or [afjfirmed.

This is sufficient judicial participation in plea negotiations to raise a presumption of vindictive sentencing. See Wilson, 845 So.2d at 156 (“[I]f the judge participates in the plea negotiations beyond what is contemplated by Warner, or by his 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.”). Here, the judge’s statement “[y]ou either want it or you don’t” cannot be interpreted as anything but an offer for Wilson to plead to the sixty-seven months. Although the dissent focuses on who initiated the plea discussions, the presumption of judicial vindictiveness may arise from judicial participation in plea discussions regardless of which party initiated those discussions. See id.

Moreover, the record clearly indicates the State revoked the sixty-seven month offer, yet the trial court continued to offer the sixty-seven months to the defendant. Further, the judge’s statement “[i]t’s the bottom of the guidelines” can be read no other way but as an attempt to urge Wilson to take the plea offer. Although a trial judge may inquire about a defendant’s willingness to accept a plea, Bell v. State, 847 So.2d 558, 564 (Fla. 3d DCA 2003), “it is not the judge’s role to advocate for a plea offer.” Wilson, 845 So.2d at 156. Although the trial judge here stopped short of affirmatively recommending that Wilson accept the plea offer, the judge’s statement “[y]ou either want it or you don’t” coupled with “[i]t’s the bottom of the guidelines” constituted judicial participation in plea negotiations.

The trial judge’s comments in this case differ from comments a judge makes when simply explaining to a defendant how a particular sentence offered compares to the defendant’s exposure under the guidelines. Cf. Snow v. Crosby, 851 So.2d 222, 223-24 (Fla. 3d DCA 2003)(holding that there is no presumption of vindictiveness where the trial court merely confirms that the defendant understood the terms of the plea agreement). This is especially true where both the State and the trial court had already apprised Wilson on the record that the sixty-seven month plea offer was at the bottom of the guidelines. By repetitively apprising Wilson of a plea offer and the fact that it constituted the bottom of the guidelines, the judge’s comments were clearly meant to encourage Wilson to accept the plea offer.

The excerpts from the record cited above demonstrate that Wilson was willing to plead guilty because he understood that his conviction violated his probation, despite the fact that he took issue with the underlying facts which resulted in his conviction. The trial court was clearly frustrated with Wilson’s insistence that he be heard, and, by its willingness to have him sworn, appeared to be willing to accept Wilson’s plea, as evidenced by the portions of the transcript emphasized above in bold. See Soto v. State, 874 So.2d 1215, 1217 (Fla. 3d DCA 2004)(stating that “continued protestations of innocence and unwillingness to admit guilt should not be factors taken into consideration by a court in sentencing a defendant”) (citations omitted).

The facts of this case are similar to those of Wilson, the Florida Supreme Court’s landmark case on judicial vindictiveness cited throughout this opinion. In Wilson, the defendant was charged with violating his probation. Wilson, 845 So.2d at 146 (citing Wilson v. State, 792 So.2d 601, 601-02 (Fla. 4th DCA 2001)). The trial judge offered the defendant 128 months to plead guilty. Id. The defendant indicated that he wanted to accept the plea, but also wanted to put on testimony from himself and his fiancée. Id. The judge refused to hear such testimony and revoked the plea offer, indicating that the case would be set for a final probation violation hearing. Id. at 146-47. In doing so, the trial judge stated to the defendant “the court’s offer was the bottom of the guidelines and in my opinion you should have taken it.” Id. at 147. The trial judge then sentenced the defendant to 150 months without any explanation for the increase. Id. Based on the sentence increase and the judge’s comments, the Florida Supreme Court found an unrebut-ted presumption of vindictiveness sufficient to require resentencing before a different judge. Wilson, 845 So.2d at 158.

While Wilson, with strikingly similar facts, was found to be a case of judicial vindictiveness as a result of a twenty-two month sentence increase, this case is even more compelling. Here, we deal with a disparity of behemothic proportion, that is, a ninety year sentence of imprisonment compared to a State-offered sixty-seven month sentence. The difference between the State-offered plea, which the trial court was prepared to accept, and the sentence imposed is almost eighty-four and a half years. The sentence ultimately imposed is over sixteen times that contemplated in the plea offer. See, e.g., Wilson, 845 So.2d at 158 (reversing vindictive sentence and noting the “extremely large disparity between the offered thirty year sentence and the seventy-five year sentence imposed”); Charles v. State, 816 So.2d 731, 735, 735 n. 3 (Fla. 3d DCA 2002)(re-versing sentence and finding a fifty year sentence with a fifteen year minimum mandatory “significantly greater” than a plea offer of twelve years with no minimum mandatory).

In considering the totality of the circumstances, we find that the defendant has established a presumptive finding of judicial vindictiveness. The record demonstrates sufficient judicial participation in plea negotiations coupled with repeated references to the plea offer as well as the fact that the offer constituted the bottom of the guidelines range. In addition, there is a huge disparity between the plea offer and the sentence imposed. Finally, as discussed below, there is a lack of any facts that would explain the reason for the increased sentence other than that Wilson exercised his right to a probation violation hearing. The totality of the circumstances amply supports a presumptive finding of judicial vindictiveness.

The Presumption of Vindictiveness Was Not Rebutted

Here, the presumption of vindictiveness that arose from the totality of the circumstances, as detailed above, was not adequately rebutted by any objective facts on the record. In fact, there were no additional facts available to the trial court at the time of sentencing that were not known at the time of the plea that would justify an eighty-four and a half year increase in the sentence imposed. The affidavit filed by Wilson’s probation officer indicated that Wilson violated his probation by “failing to live and remain at liberty without violating any law by committing the criminal offense of Exposure of Sexual Organs.... ” Thus, at the time of the plea, the trial court was aware of the nature of the probation violation and could compare this new crime with the crimes for which Wilson was already on probation, as the affidavit indicated that Wilson was on probation for four counts of lewd and lascivious exhibition on a child and Wilson himself explained to the judge the facts that gave rise to the violation. Moreover, the judge presiding at the probation violation hearing was the same judge who placed Wilson on probation in 2001, and modified his probation six months before the instant affidavit of violation of probation was filed. See Cambridge v. State, 884 So.2d 535, 538 (Fla. 2d DCA 2004)(finding an unrebutted presumption of vindictive sentencing where “[t]he record contains no explanation of the grounds for the sentence other than the nature of the crime committed, which generally was known to the court prior to the trial”)

During the probation violation hearing, Wilson’s probation officer testified that Wilson went to trial on the charge of exposure of sexual organs, was convicted, and the conviction was affirmed on appeal. Copies of the judgment, sentence, and affirmation were introduced as exhibits. The testifying probation officer did not go into detail about the trial for the underlying crime or about the evidence that was presented to the Brevard County Court. The victims of the underlying crime did not testify at the probation violation hearing. The only other pertinent evidence that was introduced at the hearing was the fact that prior probation violations were dismissed by the court. See generally Laferta v. State, 837 So.2d 562, 564 (Fla. 3d DCA 2003)(finding sentence of life imprisonment vindictive where the trial judge became an advocate for the plea, indicated that the length of the defendant’s sentence would hinge on the defendant’s procedural choices, was already aware of the defendant’s prior record, and could point to no other additional information to justify the sentence increase).

Similar to Laferta, the trial judge here did not point to any additional facts that were established during the probation violation hearing to justify the imposition of a much harsher sentence. See Wilson, 845 So.2d at 157 (“[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.”); see also Fraley v. State, 426 So.2d 983, 985 (Fla. 3d DCA 1983)(re-quiring that “the reasons for the more severe sentence must affirmatively appear in the record”)(emphasis added).

Instead, the trial judge here concluded that the fact that Wilson committed “the same reprehensible and offensive crime” shows that he is unable to “comport his behavior to laws and take advantage of the grace of the Court [sic] which is what probation is.... ” The judge then applied a “three strikes [and] you are out” analysis; explaining that the first time the defendant committed the crime, he was put on probation, the second time the defendant committed the crime it was twice as bad as the first time because there were four counts, instead of two, and that this was now the third time the defendant had done the same thing. Of course, these three strikes existed minutes earlier when the same judge was preparing to accept the sixty-seven month plea offer.

The dissent emphasizes this “explanation” and finds that it sufficiently rebuts the presumption of vindictiveness. However, nowhere during this explanation does the trial judge point to any evidence first introduced at the time of the probation violation hearing to explain why the defendant was sentenced to ninety years in prison, when, moments earlier, the judge was prepared to accept a sixty-seven month plea. Thus, the trial judge’s explanation is insufficient to overcome the presumption of vindictiveness. See Rodriguez v. State, 917 So.2d 958, 960 (Fla. 3d DCA 2005)(finding that the trial judge failed to overcome the presumption of vindictiveness accompanying a higher sentence after resentencing when the judge relied only on evidence that was known at the time of the initial sentencing).

Moreover, the trial judge’s explanation is negated by the fact that the trial judge actually referred to Wilson’s failure to accept the plea during sentencing. See Brandful v. State, 858 So.2d 367, 369 (Fla. 3d DCA 2003)(finding sentence vindictive where “the trial court mentioned the fact that the defendant had turned down a favorable plea offer” and nothing appeared on the face of the record to explain the harsher sentence). During closing argument, the State suggested a thirty-year sentence. Defense counsel then gave a closing argument, concluding as follows:

Judge, I think that a sentence of thirty years in light of this would be an extremely harsh sentence. I think that prior to taking — prior to hearing testimony in this case, my client was willing to do the bottom of the guidelines, which I think that at maximum this case warrants. My client was hoping to be able to negotiate something under that from the state. I understand the state’s position. They were unable to give us anything less, and my client had never been given anything less and that’s all that it was— and I guess I just think that the Court should not give him anything more than that, okay.

The trial judge responded by asking, “What is it that you think I should give him? CTS [Credit time served]?” In response to defense counsel’s recommendation for a sentence at the bottom of the guidelines, the trial judge responded, “Okay. Well, he chose not to avail himself of that.” This can be nothing other than a comment on Wilson’s procedural choice to have a hearing and, as such, is improper. See Stephney v. State, 564 So.2d 1246, 1247-48 (Fla. 3d DCA 1990)(fínding vindictive the trial judge’s statements “I guess he should have taken it [the original plea offer]. No. It’s not available now.” and “Even more so. The next time he will know to take it when I offer it at arraignment.”)(alteration in original). While a trial court, in its discretion, may refuse to sentence a defendant at the low end of the guidelines, it may not do so on the basis that the defendant opted not to plead guilty.

Finally, the dissent’s reliance on Bell is misplaced as that case involved a finding that there was no vindictiveness in sentencing where the “reasons” for the significant disparity between the State’s plea offer and the sentence imposed were “clear in the record.” Bell, 847 So.2d at 564. In Bell, we explained that “[a]t the time of the plea discussion, the court had not yet heard the testimony of the victim.” Id. Moreover, after hearing the testimony at trial, the trial court clearly articulated its reasons for the imposed sentence during the sentencing hearing, explaining how the victim had “literally gone through hell” and how the crime (kidnapping) “could have been even worse had the victim not escaped.” Id. at 568-64. These facts were not available to the trial court at the time of the plea offer and more than adequately overcame any finding of vindictiveness. In sharp contrast to Bell, the trial judge here did not identify or mention any fact or evidence first introduced during the probation violation hearing to explain the enormous disparity in sentencing, when, minutes earlier, the judge was prepared to accept a sixty-seven month plea.

Conclusion

Thus, based on the trial judge’s participation in plea negotiations and the glaring disparity between the State-offered plea of sixty-seven months in prison and the ninety year prison sentence imposed, we find that the totality of the circumstances raised a presumption of vindictive sentencing that was not adequately rebutted. As such, the defendant is entitled to a new sentencing hearing before a different judge.

Reversed and remanded with instructions.

WELLS, J., concurs.

ROTHENBERG, J.

(dissenting).

While I agree with my colleagues that the sentence imposed appears excessive, I cannot agree that the record supports a finding that the sentence imposed was as a result of vindictiveness. I, therefore, respectfully dissent.

In determining whether a defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated, the Florida Supreme Court concluded, as did this court in Charles v. State, 816 So.2d 731 (Fla. 3d DCA 2002), and Prado v. State, 816 So.2d 1155 (Fla. 3d DCA 2002), that a totality of the circumstances review is the appropriate analysis which must be employed. See Wilson v. State, 845 So.2d 142, 156 (Fla.2003). The factors which must be considered under a totality of circumstances review are (1) whether there was judicial participation in plea negotiations followed by a harsher sentence; (2) whether the trial judge initiated the plea discussions with the defendant in violation of Warner; (3) whether the trial judge, through his or her comments, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept the plea or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (4) the disparity between the plea offered and the ultimate sentence imposed; and (5) the lack of any facts in the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or a hearing. Wilson, 845 So.2d at 156.

It is only when the trial judge’s participation goes beyond what was contemplated in State v. Warner, 762 So.2d 507 (Fla.2000), or when the trial judge, by his or her comments, appears to have departed from the role of a neutral arbiter, may these actions alone give rise to a presumption of judicial vindictiveness. Wilson, 845 So.2d at 156. The Warner restrictions include the following: (1) the trial judge may not initiate the plea discussions; (2) the trial judge must neither state nor imply alternative sentencing possibilities that hinge upon future procedural choices, such as the exercise of a defendant’s right to trial; and (3) a record must be made of all plea negotiations involving the trial judge. Warner, 762 So.2d at 513-14.

The majority takes the position that a totality of the circumstances review is not required because the trial court violated the Warner restrictions. This position is premised on the majority’s conclusions that the trial court’s inquiry of the defendant regarding whether he wished to avail himself of the State’s offered plea, which the trial court noted was at the bottom of the recommended sentencing guidelines, (1) converted the State’s plea offer into a court offered plea, and (2) “can be read no other way but as an attempt to urge Wilson to take the plea offer.” Based upon these conclusions, along with the great disparity between the sentence offered and the sentence imposed, the majority makes a finding that the sentence imposed by the trial judge is presumptively vindictive. The record, however, does not support these conclusions and the majority concluded otherwise in its own opinion, thus taking totally inconsistent positions. See majority opinion p. 104.3, (“Although the trial judge here stopped short of affirmatively recommending that Wilson accept the plea offer, I believe that the judge’s statement ‘[i]t’s the bottom of the guidelines constituted judicial participation in plea negotiations.”) (emphasis added). A totality of the circumstances analysis is, therefore, required. Because the majority opinion did not perform a totality of the circumstances analysis, it is in conflict with the Florida Supreme Court’s opinion in Wilson and this court’s opinions in Charles and Prado.

I am also of the opinion that after performing a totality of the circumstances analysis, the record does not support a finding that the sentence imposed is presumptively vindictive. The record reflects that the trial court did not initiate the plea discussions, and limited its participation to determining whether or not Wilson was willing to accept the plea extended by the State. The trial court did not urge Wilson to accept the plea, nor infer or imply that he would be penalized for exercising his right to a hearing. To the contrary, the record reflects that the trial court encouraged Wilson to exercise that right.

A review of the record reveals that Wilson was on probation for masturbating in front of children. He was before the instant trial judge for a violation of his probation. The violation alleged that Wilson had been convicted in Brevard County for exposing himself. While the majority imputes knowledge of Wilson’s history with the court, there is nothing to support this finding. Contrary to the assertion in the majority opinion, this judge was not the judge who originally placed Wilson on probation and there were no discussions on the record nor any suggestion that there were any discussions held off the record regarding his prior violations. The following is the entire pre-hearing record.

[COURT]: James Wilson. Okay. We have got a trial date of 5-1 for Mr. Wilson.
[STATE]: Just so you know, I did score him out but it’s a rough number. 67 months at the bottom on the low end.
[COURT]: James Wilson. Have you spoken to Mr. Wilson? Is there anything further we can do in this case or should we just—
[DEFENSE]: I don’t think we need to hear testimony today; however, if the Court would be willing to listen to my client for a moment, he has something he would like to express to the Court about his feelings, if the Court—
[COURT]: No, I’m really — I’m only interested in listening to either a plea or testimony from the witness and I’ll decide whether or not Mr. Wilson [h]as violated his probation. If he’s willing to admit that he did I don’t know whether he did, but I’ll make that decision unless he’s already willing to acquiesce that, in fact, he did violate his probation. So, which is it? Does somebody have an answer for me? Are we ready to go to PVH or have a plea?
[DEFENSE]: I believe we have a plea
[COURT]: What’s the plea?
[DEFENSE]: 67 months
[COURT]: 67 months at the bottom of the guidelines; is that correct, state?
[STATE]: At the bottom of the guidelines—
[COURT]: Is Mr. Wilson willing to admit a violation of probation?
[STATE]: And he would still be on probation.
[COURT]: So that would be revoking his probation. Ready to go, Mr. Wilson? Is this what you want to do or not?
[WILSON]: I want to — if I can say one thing, Your Honor? You have a sign, “We who labor here seek only the truth.” If I give you the truth — my truth is that I’m not guilty of doing what they say.
[COURT]: Fine. I have witnesses. I’ll take testimony and I’ll decide. If you are right and then if I agree with you, you walk out a free man. How is that? Let’s go. Raise your right hand. Put on your first witness, State.
[DEFENSE]: We do not need to have a hearing. I think that Mr. Wilson just wanted to express something to the Court if the Court will hear him for three minutes?
[COURT]: I already heard it. He says he is not in violation of his probation. He is not guilty. If that’s how he feels, I’m going to give him a hearing. Is that what you want to do “yes” or “no?” It’s a “yes” or “no” question. I am out of here pretty soon, so we are going to do this one way or another. Raise your right hand and be sworn.
[DEFENSE]: Pass this for one moment.
(Proceedings held on unrelated matters)
[COURT]: Page 12 James Wilson. What is Mr. Wilson going to do?
[WILSON]: Your Honor, I’m going to, I guess, I’m going to have to admit this but—
[DEFENSE]: Mr. Wilson’s frustration, Judge, is with the underlying charge, the way that that occurred and his continuing belief of his innocence in that case.
[COURT]: Mr. Wilson, let me tell you something. The underlying charge is gone. It is a [fate] accompli as we call it. It is a done deal. The only question is: Were you on probation?
[WILSON]: Yes.
[COURT]: Did you violate probation is the issue.
[WILSON]: Yes.
[COURT]: Whether or not rightfully or wrongfully on probation, you were on probation, right?
[WILSON]: Right, and I understand the position this Court is in and I will admit it.
[COURT]: That’s the only question. The only question is: Did you violate the probation?
[WILSON]: According to the Brevard County Court I did.
[COURT]: Okay. That’s the only question.
[WILSON]: Judge, because due to the fact it’s a third degree felony for me to — -if I did not let my neighbors know what I’m on probation for, this is what I understood by my probation officer.
[COURT]: That is immaterial.
[WILSON]: I let my neighbors know. That’s the reason why they wanted me out of the neighborhood. That’s the reason they came with these false allegations against me. This is what I’m trying to bring to the — I brought—
[COURT]: You are saying that what they are alleging violates you is all a lie? Is that what you are saying?
[WILSON]: That’s exactly what I’m saying, Your Honor. It’s only saying because I was the apartment building manager and I was reporting to the landlord things that they were doing that wasn’t right instead of me calling the police. And if they were accusing me, they should have called the police a long time ago. It was a third degree felony for me to live in an area—
[COURT]: I don’t know what you are saying, but the charge that I’m looking at that was filed in the court in January of this year, you were charged with exposure of sexual organs. So, you are saying you didn’t do any of that?
[WILSON]: No, ma’am. I didn’t do any of that.
[STATE]: The state is revoking the 67 months.
[COURT]: All right. Let’s go, rock and roll. Swear in your witnesses.
[WILSON]: Your Honor, excuse me. You don’t have to do this.
[STATE]: The state is revoking the 67 months, so you know—
[COURT]: You either want it or you don’t.
[WILSON]: They are revoking the 67 months?
[COURT]: It’s the bottom of the guidelines.
[WILSON]: We’ll go with this 67 months.
[COURT]: Then raise your right hand and be sworn or affirmed.
[WILSON]: Can I say one thing?
[COURT]: No. The only person who is going to say anything is this probation officer or me.
[WILSON]: Judge, I’m going to file a Motion for Ineffective Assistance — •
[COURT]: No.
[WILSON]: Go with the—
[COURT]: I’m going to take testimony from this man [probation officer] and if I need to continue it, I will. Sit down. [After which the probation officer was sworn and testified].

A fair reading of the transcript reveals that it was the State who initiated the plea discussions with Wilson and offered him a plea of sixty-seven months state prison followed by probation. The trial court was simply trying to ascertain if Wilson was willing to accept the plea. Wilson, however, as we learn later in the proceedings, was attempting to obtain a better offer from the trial court by arguing his innocence. The trial court initially mistook Wilson’s argument as a claim that he was innocent of the charges that initially resulted in him being placed on probation, and, therefore, explained to Wilson that was not the issue before the court. The issue before the court was not whether he should have been placed on probation, but rather, whether he had done anything to violate his probation. Wilson eventually explained that what he was challenging was the Brevard County conviction, which was the subject matter of the instant violation of his probation. Upon hearing Wilson’s explanation, the State revoked its offer and the trial court attempted to proceed with the hearing. Wilson, however, told the trial court he wanted to accept the State’s offer, to which the trial court responded by telling him to raise his right hand to be sworn. When, however, it became clear that Wilson was not satisfied with the services of his attorney (he stated that he was going to claim ineffective assistance of counsel), the trial court proceeded with the hearing.

Based upon this record, I find no fault with the majority’s conclusions that the trial court became involved in the plea discussions and that there was a great disparity between the offered plea and the sentence imposed. Where, I disagree, is with the majority’s findings that the trial judge’s comments converted the State’s offered plea into a judicially offered one and that the trial court, in essence, became an advocate of the State’s offered plea by urging the defendant to accept it. In the absence of these factors, I would conclude that Wilson failed to establish a presumption of vindictiveness and thus, was required to prove actual vindictiveness. See Wilson, 845 So.2d at 149, 156 n. 8 (holding that where the circumstances do not create a presumption of vindictiveness, the burden remains upon the defendant to prove actual vindictiveness)(citing Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)). Here, the trial court did not initiate the plea discussions, did not urge Wilson to accept the plea, did not state nor imply that the sentence would be higher if he exercised his right to a hearing, and articulated the reasons for the increased sentence. In fact, the trial court specifically told Wilson that if the trial court agreed with him after hearing the evidence, he would walk out of the courtroom “a free man.” Rather than urging Wilson to accept the plea, or threatening him with a harsher sentence if he elected to present his case, the trial court encouraged him to do so. These factors actually dispel any suggestiveness of vindictiveness.

A presumption of vindictiveness may be rebutted by objective information in the record

In Wilson, the Florida Supreme Court recognized, as did the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny, that a presumption of vindictiveness may be overcome by objective information in the record justifying the increased sentence. Wilson, 845 So.2d at 148.

In Wilson, the Florida Supreme Court reviewed two cases, and applied the totality of circumstances analysis in determining whether the actions of the trial judge gave rise to a presumption of vindictiveness and whether the State was able to produce affirmative evidence in the record to dispel the presumption. In the first case, Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), the Court noted that while the trial judge did not initiate the plea discussions, (1) the trial judge exceeded the limits of Warner by both urging Byrd to accept the plea and by stating that if Byrd chose to go to trial, he would not receive a sentence as low as the one being offered; and (2) there was a huge disparity between the sentence offered and the sentence imposed, thus creating a presumption of vindictiveness which the State failed to rebut. Wilson, 845 So.2d at 157-58.

The second case under review was Wilson v. State, 792 So.2d 601 (Fla. 4th DCA 2001). In that case, the plea offer was initiated by the trial judge, which the defendant rejected. Before hearing any of the evidence, the trial court told the defendant that the court’s offer was the bottom of the guidelines and that in the court’s opinion the defendant should have accepted the plea. The Florida Supreme Court specifically stated,

[I]t 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.

Wilson, 845 So.2d at 158.

The instant case sharply contrasts with Byrd and Wilson. Unlike Byrd, the trial judge in the instant case did not urge the defendant to accept the plea nor threaten the defendant with receiving a higher sentence if he did not accept the plea offer, and unlike Wilson, the trial judge in the instant case did not offer any opinion regarding the defendant’s choice whether to accept the plea. More importantly, the instant case differs from Byrd and Wilson in that the trial judge in the instant case specifically articulated her reasons for the higher sentence at the time she imposed the sentence, thereby rebutting any presumption of vindictiveness.

What the trial judge learned during the hearing was that Wilson committed two lewd and lascivious assaults upon children in 1999 by exposing himself and masturbating in their presence, and that he was placed on eight years of probation for those offenses in 2000. In 2001, while on probation, Wilson committed exactly the same offenses upon four more children and was sentenced to eighteen months state prison followed by eight more years of probation for both the 1999 and the 2001 offenses. After being released from prison, additional affidavits for violation of probation were filed for failing to complete the MDSO (sexual offender treatment) program, failing to report, changing his address, and violating his curfew. These violations were ultimately dismissed, providing Wilson with the continued opportunity to successfully complete his probation. The final violations occurred in Brevard County, where Wilson was again charged with and convicted of exposing himself. These convictions were affirmed on appeal and were the subject of the instant probation violation hearing. When imposing the sentence, the trial judge clearly articulated her reasons for the sentence imposed:

The court finds that the state has proven by the preponderance of the evidence that the defendant has committed a willful and substantial violation.
I find that had the defendant come before me on his first case, on a curfew violation of five minutes, he would have deserved 30 years, but, in fact, he actually committed the same reprehensible and offensive crime showing that he had an inability to comport his behavior to laws and take advantage of the grace of the Court which is what probation is, Mr. Wilson.
And finally, three strikes you are out. The first time you committed the crime, you got put on probation, the second time you committed the self-same crime — -twice as bad. Four victims instead of only two. And that is only what the state felt they could prove.
And then the third thing is the third time you have done this same thing, and the Court [h]as found, and another Court, and I must abide by that finding and I’m not retrying that case or any credibility issues.
The appellate courts have found there was competent and substantial evidence to find beyond a reasonable doubt that you committed an indecent exposure, which is just another variation of your prior two very significant crimes.
This Court finds that you were given the grace of the Court twice, that you violated the Court’s trust in you, society’s trust in you, and you cannot conform your behavior to the requirements of the law.

Bell v. State, 847 So.2d 558 (Fla. 3d DCA 2003), is a case strikingly similar to the instant case. Bell had been offered a plea by the State of 364 days in the Dade County Jail, followed by four years of probation which included a special condition that he perform 200 hours of community service. When Bell rejected the State’s offer, the trial judge offered to delete the community service if he was willing to accept the plea. Bell rejected both the State’s and trial court’s offers, proceeded to trial, and was sentenced to thirty years incarceration. Bell argued that a presumption of vindictiveness arose due to the trial court’s involvement in plea discussions with him and the great disparity between the plea offers and the sentence imposed. This court (Judges Cope, Gode-rich, and Green) unanimously affirmed the sentence after concluding that although the trial court was involved in the plea discussions with Bell, added its own modification to the plea after it was rejected by Bell, and imposed a significantly higher sentence after trial, Bell nonetheless, failed to establish vindictiveness. This court observed that while there was a great disparity between the plea offer and the sentence imposed, the trial court did not become an advocate for the State’s plea offer; did not state or imply there would be future consequences for the failure to accept the plea; at the time of the plea discussions, the trial court had not yet heard the evidence; and the trial court’s remarks at sentencing made it clear why it was imposing such a harsh sentence. Id. at 564.

Similarly, in the instant case, the trial court did not state or imply there would be future consequences for failure to accept the plea and, in fact, encouraged Wilson to exercise his right to a hearing and told him that if she “agreed with him” Wilson would walk out of the courtroom a free man. Additionally, there was ample evidence in the record to rebut any presumption of vindictiveness. Like Bell, the trial court was persuaded, based upon the evidence it heard at the hearing, to impose the sentence it imposed, and clearly articulated the reasons for the sentence imposed.

While the facts in Prado v. State, 816 So.2d 1155 (Fla. 3d DCA 2002), are in sharp contrast with the instant case and with Bell, the analysis, holding, and observations are instructive. In Prado, while the State had initiated the plea discussions with the defendant; the trial court conducted a lengthy exchange with the defendant regarding the benefits of accepting the State’s four-year plea offer; and the transcript revealed that the trial court had become a zealous advocate for the plea, emphasizing its merits, the uncertainly of the outcome, and the possibility that the defendant might receive a harsher sentence upon conviction. These factors, coupled with the exponentially longer sentence (forty years as opposed to the four years offered pre-trial), created a presumption of vindictiveness. Because the record revealed no other reason for the imposition of the harshness of the sentence, this court concluded that the presumption was unrebutted and reversed the sentence.

Unlike Prado, the trial judge in the instant case did not advocate the merits of the plea; did not attempt to frighten or coerce Wilson into accepting the plea; did not infer future negative consequence if he failed to accept the plea; and provided her reasons for imposing the sentence, thereby rebutting any presumption of vindictiveness. As Judge Sorondo noted in his concurring opinion in Prado,

I emphasize that “[a] judge’s preliminary evaluation of the case is not binding, since additional facts may emerge prior to sentencing which properly inform the judge’s sentencing discretion.” State v. Warner, 762 So.2d at 514. Accordingly, the 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.... 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.

Prado, 816 So.2d at 1164.

The majority takes the position that the trial judge learned nothing new during the presentation of the evidence at the hearing, and, therefore, the presumption of vindictiveness was unrebutted. I respectfully disagree. First, contrary to the majority opinion, the instant trial judge was not the judge that placed Wilson on probation on December 30, 1999, which would have required a review of the arrest affidavit or at least a proffer of the facts before accepting his plea. Additionally, while the majority concludes that when the plea was being discussed the trial judge was aware of Wilson’s history with the court and the facts of his cases, there is nothing in the record to support such a finding. This was not the trial judge that placed Wilson on probation in 1999. Nor was she the trial judge who vacated Wilson’s plea on January 20, 2000. The instant trial judge was also not the trial judge on August 14, 2000, when Wilson was offered a new plea, accepted the offered plea, was placed on probation, and the trial judge arguably considered the facts of the case in determining whether there was a factual basis for the plea. Nor was she the judge when Wilson violated his probation by exposing himself and masturbating in front of four children (the same offense he was on probation for), admitted to violating his probation on August 16, 2001; was sentenced to eighteen months state prison followed by eight years of probation; and the trial court was appraised of the facts regarding the substantive offenses he committed while on probation. In fact, this trial judge’s first involvement with this defendant was at the end of 2004. In late 2004, this trial judge accepted Wilson’s admissions that he violated his curfew on two occasions and awarded him credit for the time he served prior to his admissions. There certainly is no evidence in the record to suggest the trial judge was familiar with the facts regarding the underlying offenses and Wilson’s history of supervision when she simply awarded him credit for time served regarding these technical violations.

The last event which brought Wilson before this trial judge occurred approximately six months prior to the instant probation violation hearing. An affidavit for violation of probation was filed on January 31, 2005. It, however, was dismissed by the State on February 4, 2005, without a hearing. This event, involved no court participation or approval.

While I have the greatest respect for my colleagues, to make a finding that the trial judge was aware of the facts regarding the substantive offenses which resulted in Wilson being placed on probation; the substantive offenses he committed during the ensuing years; and the history of his lengthy supervision, which for the most part was before a different judge, is speculative and unreasonable. In every felony division in Miami-Dade County, over two thousand new felony cases are assigned to each trial judge every year, which result in multiple appearances by the defendants throughout the year. On any given day, a trial judge may have anywhere from ten or twenty to a hundred fifty or more defendants on the trial judge’s calendar. While the court file may contain a wealth of information about a defendant and the defendant’s case, the file is under the control and in the possession of the court clerk, not the trial judge. It is generally only when the trial judge asks to review an arrest affidavit or a document, that the court clerk will provide these documents to the trial judge. Due to the volume of cases and matters before the trial judge, the trial judge generally will not review an arrest or probation violation affidavit unless asked to do so, or does so when deciding whether to accept a negotiated plea, when reviewing a defendant’s bond, or in making a determination during the plea colloquy whether there is a factual basis to support the defendant’s plea to the charges. Given the reality of the situation, to expect a trial judge to know and to remember the facts and circumstances of each defendant’s case or cases, is unrealistic. In the instant case, because the record reflects that there were no discussions regarding the facts of Wilson’s initial case in 1999, the facts regarding the 2001 case, the history of Wilson’s supervision which includes multiple violations and incarceration, the facts regarding the current violations and there is no evidence that the trial court had reached the point in her discussions with Wilson where she had begun to review the documents in his file, I cannot agree that her knowledge can be assumed.

CONCLUSION

While the trial judge did become involved in the plea discussions with Wilson and did impose a much harsher sentence after hearing the evidence, based upon the totality of the circumstances, which includes the absence of the remaining factors and the trial court’s specific statements on the record, I would conclude that Wilson failed to demonstrate a presumption of vindictiveness. The trial judge clearly did not initiate the plea discussions; did not become an advocate for the benefits of the plea; did not encourage Wilson to accept the plea; did not threaten or attempt to coerce him into accepting the plea; and articulated her reasons for imposing the sentence she imposed. Wilson, therefore, was required to prove actual vindictiveness, which he clearly cannot do. However, even if I were to conclude that the sentence was presumptively vindictive, because I believe that the record clearly rebuts that presumption, I would affirm and must respectfully disagree with the majority opinion.

While the word “vindictive” is a term of art which does not imply personal animosity on the part of the trial judge, this expansive application of the term does not alter the analysis. Before finding vindictiveness in the sentencing context, the reviewing court must still examine all of the factors articulated in Wilson and conclude that based upon the totality of the circumstances there is a presumption that the sentence imposed was in retaliation for the defendant’s decision to exercise his right to a trial or in this case, a hearing. If a presumption of vindictiveness is demonstrated, the reviewing court must then determine whether the presumption was rebutted. Thus, while I agree with the majority that the sentence imposed by the trial judge appears excessive, since the trial judge did not initiate the plea; did not become an advocate for the benefits of the plea; did not encourage Wilson to accept the plea nor threaten or attempt to coerce him into accepting the plea; actually encouraged Wilson to exercise his right to a hearing, and told him that if after hearing all of the evidence she agreed with him, he would walk out of the court a free man, I cannot agree that the sentence was presumptively vindictive. To make such a finding on this record would suggest that vindictiveness may be found on the length of the sentence alone, a conclusion which is inconsistent with prior rulings of this court and our sister courts. See Wilson, Byrd, Bell, and Prado. For this reason and because the trial court clearly articulated its reasons for the sentence imposed, thereby rebutting any presumption of vindictiveness, I would affirm.

      . We note that the trial judge proceeded with the violation hearing as though Wilson rejected the plea offer when, in fact, Wilson was willing to accept the plea offer. In the context of a probation violation hearing, a defendant may plead guilty to a violation arising out of a criminal conviction, for which there is ample evidence that the defendant was, in fact, convicted, while maintaining his/her innocence of the crime. See Maselli v. State, 446 So.2d 1079, 1081 (Fla.1984)(affirming and approving Maselli v. State, 425 So.2d 176 (Fla. 2d DCA 1983)).

      . In State v. Warner, 762 So.2d 507 (Fla.2000), the Florida Supreme Court discussed a judge’s appropriate role in plea negotiations. The supreme court noted the usefulness of judicial participation in plea negotiations but also recognized that safeguards must be in place to ensure that a defendant’s rights are not violated. Id. at 510-14. After reviewing secondary sources and cases from other states on the topic, the supreme court decided that "judicial involvement 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.’ ” Id. at 513 (citation omitted). To achieve these ends, the supreme court found that "[t]he 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. Additionally, the supreme court found that “[t]he judge may state on the record the length of the sentence which, on the basis of information then available to the judge, appears to be appropriate for the charged offense.” Id. at 514. However, "[t]o avoid the potential for coercion, 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. Additionally, "[a] record must be made of all plea discussions involving the court.” Id.

      . The transcript of the hearing shows that the trial judge inquired at least three times whether Wilson wished to plead guilty to the probation violation.

      . These were the facts of Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), a companion case to Wilson v. State, 792 So.2d 601 (Fla. 4th DCA 2001), that was reviewed and decided by the Florida Supreme Court in the same opinion. See Wilson, 845 So.2d at 145 n. 1.


text:
    STATE of Louisiana v. Eddie ROBERT.
    No. 2006-K-1872.
    Supreme Court of Louisiana.
    March 9, 2007.
   PER CURIAM.

| t Granted. The decision of the court of appeal is reversed and defendant’s habitual offender sentence is reinstated.

A remand for resentencing on a complete record of the court’s reasons is necessary only when the defendant shows a substantial possibility that the sentence imposed is excessive. State v. Wimberly, 414 So.2d 666, 672 (La.1982). However, in the present case, the trial court imposed the mandatory minimum term of imprisonment provided by the legislature for a second felony offender convicted of distribution of marijuana, La.R.S. 40:966(B)(3); R.S. 15:529.1(A)(1)(a), and defendant made no showing below that he is the exceptional offender for whom a mandatory minimum penalty specified by the legislature is excessive as applied to him. State v. Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 677. In this regard, the ameliorative sentencing provisions enacted by 2001 La. Acts 403 have no bearing on defendant’s sentence, either directly or as a guide for what a trial judge might deem an appropriate punishment, see State v. Clark, 391 So.2d 1174, 1176 (La.1980)2 (“Inherent in mitigatory changes in penalty provisions of an offense is a legislative determination ... that a lesser penalty is sufficient to meet the legitimate ends of the criminal law.”) (citations omitted), as they did not change either the penalty provided for distribution of marijuana as a matter of La.R.S. 40:966(B)(3), or the sentencing range provided for a second offender by La.R.S. 15:529.1(A)(1)(a).

JOHNSON, J., would deny.