Fred HARRIS, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
*364 James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
KELLY, Judge.
Fred Harris appeals his sentences for sale of coсaine and possession of cocaine following a jury trial. He argues that the trial court's imposition of a sentence which was harsher than the court's pretrial plea offer was vindictive. We agree and reverse and remand for resentencing because the State has fаiled to overcome the presumption of judicial vindictiveness raised by the trial court's involvement in the plea process.
On the day of Harris's trial, but before jury selection, defense counsel reminded *365 the court that it had previously offered Harris thirty-six months for all charges that were pеnding at pretrial. Counsel explained that he had advised Harris to take the offer, but Harris insisted that he wanted a trial. In response to defense counsel's request that the court repeat the plea offer to Harris on the record, the court stated:
THE COURT: How's that going to look eventuаlly on appeal if nothing to this point has made him want to enter a plea? The judge goes aggressively towards the plea, doesn't get it, goes to trial and gets ripped for 20 years? Then what? The judge would be vindictive `cause he wouldn't take his plea offer on the morning of trial?
MR. HOLLOWAY: I can't guarаntee what he is or isn't going to do.
THE COURT: You know, they have taken it out of my hands, as far as trying to suggest to people what's in their best interest for peoрle that are recalcitrant. That's fine, that's what they have decided. What you have done, if you get involved and try to suggest to somebody, they're saying you're coming away from the neutral and detached magistrate you should be in these circumstances.
MR. HOLLOWAY: I tend to agree. Perhaps there is а balance that can be struck, if the Court is concerned about being too strong or aggressive in it's [sic] approach with my client.
THE COURT: I'm just going to bring him in and tell him what the situation is.
MR. HOLLOWAY: And that's really what I am requesting that we have on the record, that he is making a very knowing and intelligent decision to proceed to trial.
THE COURT: Yes. I think I'll do that, but I'm just going to approach it in those terms. If there's any issues later on about whether he, for purposes of a plea-did you offer the 36, or did I?
MS. THOMPSON: No, you did.
. . . .
THE COURT: The offer was 36 from the Court concurrent on everything, with credit. . . . You have explained to him that the possible penalties on the sаle is up to 15 years, and the two possessions up to five each; right?
MR. HOLLOWAY: Yes, I have.
THE COURT: For a total of 25.
MR. HOLLOWAY: Yes.
. . . .
THE COURT: Mr. Harris have any prior record?
MS. THOMPSON: Yes he does, Your Honor.
THE COURT: How many felonies or crimes involving dishonesty or false statement?
MS. THOMPSON: 11 felonies.
. . . .
THE COURT: All right. Do you understand that if you go, you're exercising your right, you have told Mr. Holloway, that you wanted to go to trial on the case?
HARRIS: Yes, sir.
. . . .
THE COURT: All right. Mr. Harris has indicated he's had the adviсe of counsel, had enough time to talk about it, has no questions, and wants to move forward to trial. So soon as I finish the motion calendar we will bring him in, start picking a jury. All right. Thank you.
Following the jury verdict finding Harris guilty as charged, the trial court sentenced him to ten years' imprisonment for sale of cocaine and to a concurrent term of five years' imprisonment for possession of cocaine. On appeal, Harris argues that *366 the sentenсes imposed by the trial court were vindictive because Harris rejected the court's offer of thirty-six months and exercised his right to trial.
Appellate courts should look at the totality of the circumstances when determining whether a defendant's constitutional right to due process was violаted by the imposition of an increased sentence after unsuccessful plea negotiations in which the trial court participated. Wilson v. State,
In considering the factors listed in Wilson, it is apparent that the trial judge in this case initiated the plea discussions with Harris, that he departed from his role аs an impartial arbiter, and that there was a large disparity between the thirty-six-month plea offer and the ten and five-year sentences that he ultimately imposed. The presumption of judicial vindictiveness arose from a showing of these factors. Wilson,
In addition, this court has no way of evaluating the "totality of the circumstances" of the court's plea offer. Here, the offer was made known only because defense counsel requested that the court place the offer on the record along with defense counsel's recommendation that Harris enter a plea rather than proceed to trial. The trial court's failure to make its original offer on the record is a violation of State v. Warner,
The State argues that any error was invited because it was only at defense counsel's insistence that the court made a record of the plea offer. In fact, the record shows that the trial court was reluctant to do so. However, as the State points out, the trial court's reluctance to make such a record was because of its fear that if it imposed a harsher sentence after trial these very grounds for appeal would arise.
Thus, because there is a "reasonable likelihood" that the harsher sentence was imposеd in retaliation for Harris's exercise of his right to a trial, we reverse and remand for resentencing before a different *367 judge. See Wilson,
Reversed and remanded.
NORTHCUTT and SILBERMAN, JJ., Concur.