Florida Law on Vindictive Sentencing

What happens if the trial court imposes a vindictive sentence?

Vindictive sentencing is more obvious when the trial court participates in plea negotiations, makes a court offer, or imposes a harsher sentence than previously anticipated.

The courts have considered vindictive sentencing during the original sentencing, at a violation of probation hearing, or during a resentencing after an appeal.

The term “vindictive sentence” means a sentence that punishes or deters the defendant for exercising one of the following rights:

• the right to an appeal;
• the Fifth Amendment right not to plead guilty; or
• the Sixth Amendment right to demand a jury trial.

See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); State v. Warner, 762 So.2d 507 (Fla. 2000); State v. Warner, 762 So.2d 507 (Fla. 2000); Charles v. State, 816 So.2d 731 (Fla. Dist. Ct. App. 2002); Mitchell v. State, 521 So.2d 185 (Fla. Dist. Ct. App. 1988).

In this context, the term “vindictiveness” does not imply any subjective or personal animosity between the court and the defendant. Longley v. State, 902 So.2d 925 (Fla. 5th DCA 2005).

Factors Showing a Vindictive Sentence

When a claim of vindictive sentencing is raised, the reviewing court must examine the surrounding circumstances. Wilson v. State, 845 So.2d 142 (Fla. 2003). In Wilson, the Florida Supreme Court reasoned:

“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.”

Id. at 156.

Other factors to be considered by the court include, but are not limited to, the following:

• Whether facts on the record explain the reason the court increased the sentence other than that the defendant exercised his or her right to a trial or hearing;
• The difference between the plea offer and the sentence actually imposed by the court;
• Whether the trial court initiated the plea discussions with the defendant;
• Whether the trial judge made comments on the record that show the court departed from its role as an impartial arbiter by either:
  • urging the defendant to accept a plea; or
  • implying that the sentence imposed would hinge on some procedural choice, such as exercising the right to a trial.

See Vardaman v. State, 63 So. 3d 925, 927 (Fla. 4th DCA 2011).

For these reasons, judges will often refuse to indicate a likely sentence when the defense asks for an advisory opinion because the issue of vindictiveness might be raised if the court later imposes a harsher sentence. Harris v. State, 903 So. 2d 363, 366 (Fla. 2d DCA 2005).

A presumption of vindictiveness arises where there is a “reasonable likelihood” that the increase is the result of actual vindictiveness on the part of the sentencing authority. Evans v. State, 280 So. 3d 511, 514 (Fla. 2d DCA 2019).

This article was last updated on Friday, July 19, 2024.