842 So. 2d 1047

Curtis Eugene SMITH, Appellant, v. The STATE of Florida, Appellee.

No. 3D02-1701.

District Court of Appeal of Florida, Third District.

April 23, 2003.

Bennett H. Brummer, Public Defender and Ivy R. Ginsberg, Special Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General and Erin K Zack, Assistant Attorney General, for appellee.

*1048Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.

SCHWARTZ, Chief Judge.

On this appeal from the denial of the defendant’s 3.800 motion, we find that the trial judge improperly imposed a “vindictive” sentence of thirty years minimum mandatory as a violent career criminal despite his own explicit offer of fifteen years if the defendant pled guilty to this (and another) offense before trial. As required, we reverse for resentencing of the defendant before a different judge.

This case is entirely governed by Wilson v. State, 845 So.2d 142, 2003 WL 1832631 (Fla. April 10, 2003).1 Here, like Wilson, but unlike situations in which the trial court “merely” endorses a pre-trial plea offered by the prosecution, see Nowells v. State, 840 So.2d 415 (Fla. 3d DCA 2003), the trial judge in this case expressly—directly contrary to State v. Warner, 762 So.2d 507 (Fla.2000) — made the offer himself. Thus, the transcript reveals the following:

THE COURT: I will be more than happy to let you do that in a minute. Do you understand I have offered if you want to resolve both of these cases today a plea of fifteen years state prison with credit time served since April of 1999?
And for all practical purposes the roughly fifteen years state prison as a habitual offender means you would probably serve close to the fifteen years in state prison. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand if you reject that I will not extend that offer to you again? The State has not extended that offer, I have extended that offer. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Is that what you wish to do, you wish to reject the Court’s offer?
THE DEFENDANT: Yes, sir.

In these circumstances, it is clear that the post-trial imposition of thirty years minimum mandatory after conviction gave rise to a presumption of vindictiveness which, as in Nowells, for example, was not only unrebutted but actually confirmed by the record.2

*1049Hence, the order on appeal is vacated and the cause is remanded for sentencing before a different judge.3 Wilson.

Vacated and remanded.

Smith v. State
842 So. 2d 1047

Case Details

Name
Smith v. State
Decision Date
Apr 23, 2003
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842 So. 2d 1047

Jurisdiction
Florida

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