       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           RICHARD WALKER,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-3477

                             [April 20, 2016]

  Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael Usan, Judge; L.T. Case No.
13008068CF10A.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

    Appellant/cross-appellee Richard Walker timely appeals his sentence,
arguing that the trial court imposed a vindictive sentence, higher than the
sentence offered in plea negotiations in which the court participated. The
State cross-appeals, arguing that the trial court erred by dismissing one
of appellant’s charges at sentencing. We affirm appellant’s sentence,
concluding that the court did not depart from its neutral role in the
sentencing discussions, and the slightly higher sentence imposed after
trial was not vindictive. We reverse the trial court’s vacation of one of
appellant’s convictions, as the court was unauthorized to do so after trial.

   Appellant was charged by information with three counts: (1) Aggravated
battery with great bodily harm, to wit, hearing loss requiring surgery, a
second degree felony and a violation of section 784.041, Florida Statutes
(2011); (2) Battery on a public transit employee, the victim in count I, a
third degree felony and a violation of sections 784.03(1), 784.07(1)(e), and
784.07(2)(b), Florida Statutes (2011); and (3) Criminal mischief with under
$200 of damage to a motor vehicle, a second degree misdemeanor and a
violation of section 806.13(1)(a) and (b)(1), Florida Statutes (2011).

   The day before trial, the State offered appellant a plea deal of five years
of probation, with adjudication, and $200 in restitution. The State also
noted that if appellant went to trial, he would be facing a mandatory
minimum of two years in prison, given the victim injury points. The State
revoked the offer at the beginning of the trial. The court conducted a
colloquy with appellant:

      [I]t’s my understanding that the State has made you what we
      call a below guidelines offer to resolve the case. The guidelines
      are the limits of my discretion. So if the jury should find you
      guilty, then the minimum sentence that I can impose would be
      22 month Florida State Prison up to ten years and 60 days.

The court ascertained that appellant had discussed the offer with his
counsel and still wanted to go forward with the trial.

   The State then presented its case. The victim testified to the attack and
his injuries. Two doctors confirmed the victim’s injuries. At the close of
the case, the defense moved for a judgment of acquittal, which was denied.

   Appellant then informed the court that he wished to testify, and the
court conducted a colloquy. Appellant requested time to speak with
counsel, and asked the court what it “would be willing to offer him at this
point in the trial?” The State noted that it had originally offered five years
of probation, but since then the victim had requested ten years in prison.
The following exchange took place:

      COURT: Well, what’s your position now? I mean, we’ve gone
      through this again. But, again, I’m interested in resolving
      cases. There’s an element of the unknown out there, which
      we don’t know. And a plea gives a definite resolution to the
      case, that’s why I’m in favor of them. Because everyone knows
      what’s going to happen then as opposed to not leaving it to
      people we don’t know.

      STATE: After hearing the doctor’s testimony that [the victim]
      was put through something that he is going to be living with
      for the rest of his life, there are both opportunities for the
      Defendant to walk away.



                                      2
I feel, because of the prior Domestic Battery, the Domestic
Violence Battery, there is certainly an anger issue present that
needs to be addressed. It would be my position that the five
years stand. I would advocate for the conviction in this case
given the facts. I would also request or we would favor an
anger management course continuously through probation.
No return to the address.

COURT: I don’t know if it’s continuous through. But I would
certainly be in favor of doing some kind of program on that.

                              ....

COURT: I would be inclined to do an adjudication, five years
probation. Then 26 week anger management course. I know
he probably prefers not to have the adjudication. I’ve got to
tell you, if the jury convicts him, and it would be pretty easy
for them to convince the Court those victim injury points are
present. And that puts us in a whole different area.

                              ....

DEFENSE: You’re not willing to consider the withhold?

COURT: I think under the circumstances he’s looking at an
adjudication on this.

                              ....

DEFENSE: Reject the offer at this time.

COURT: Okay. Well, let’s put him on the record to make sure
that there’s no question about that. You understand that an
offer was extended. That’s similar to the offer before, the
difference is that at this point it would be an adjudication, five
years probation, anger management course. That’s the offer
that’s been made. You understand that?

APPELLANT: Yes, sir.

COURT: And you wish to reject that offer and go forward?

APPELLANT: Yes, sir.


                                3
      COURT: And you understand that should the jury come back
      with a conviction, that you score. They have explained to you
      about the Score Sheet and how that works.

      Because, essentially, you get a certain amount of points,
      depending on the offense, certain amount of points prior. You
      don’t have any points so none added on to that. Then there’s
      some victim injury points that can get assessed on there.

      With those points, if the jury comes back as charged on Count
      I, then the bottom of the guidelines would be what?

      STATE: 22.35 months.

      COURT: About two years in Florida State Prison. And that
      could be followed by probation as well. So you understand
      when something is at the bottom of the guidelines, that means
      the bottom of my discretion. That even if you were like my
      own son, that’s the best I can do. You understand that?

      APPELLANT: Yes, sir.

      COURT: And you wish to go forward and reject the offer that
      includes no incarceration?

                                   ....

      APPELLANT: Yes, sir.

   Appellant then testified, claiming that the victim was the aggressor in
the incident. Appellant denied hitting or kicking the victim. The defense
then rested and moved for a second judgment of acquittal, which was
denied.

    Appellant was found guilty as charged of battery with great bodily harm
(count I) and battery of a public transit employee (count II). He was found
not guilty of criminal mischief (count III). The court began to pronounce
an adjudication as to counts I and II, but stopped and stated, “We’ll wait
until sentencing to deal with that. State will make an election as to what
count they want to go forward on, which count you will then dispose of.”
The State responded, “Okay.” The court then adjudged appellant not guilty
of the criminal mischief charge.



                                    4
     At sentencing, appellant disputed having convictions on both counts I
and II. Defense counsel maintained that prior to trial, the prosecutor told
the defense that she would enter a nolle prosequi on count II if appellant
were convicted of both counts I and II. While the prosecutor conceded that
she had made the statement, she maintained that she did so because she
erred in concluding that the two convictions would violate double jeopardy.
The court then acknowledged that the two convictions did not meet the
Blockburger1 test and would not constitute double jeopardy, but
nevertheless decided to hold the State to its representations made prior to
trial. It then asked the State to elect on which charge it wanted appellant
sentenced. While the State elected to have appellant sentenced on count
I, it objected to the court not sentencing him on both and asked that count
II be held in “abeyance” instead of being dismissed.

   The State requested 51.6 months in prison under the severe injury
guidelines, plus eight months of probation, with special conditions and
restitution. Appellant scored a recommended sentence of 19.5 months in
prison, with victim injury categorized as moderate. Appellant moved for a
downward departure from the sentencing guidelines, arguing that this was
an isolated incident that occurred while he was separated from his wife
and living out of his car, and the victim did not believe that appellant was
actually a transit employee. The court then adjudged appellant guilty on
count I and sentenced him to thirty months in prison, followed by eighteen
months of probation. The court set aside his conviction on count II.

   Appellant now appeals his sentence, and the State cross-appeals the
vacation of appellant’s conviction on count II.

   Appellant claims that his thirty-month sentence for aggravated battery
is vindictive because it exceeds the sentence offered during plea
negotiations in which the court participated. “Whether a defendant’s
sentence is vindictive is a question of law subject to de novo review.”
Vardaman v. State, 63 So. 3d 925, 926 (Fla. 4th DCA 2011). Moreover,
“imposition of a vindictive sentence is fundamental error that may be
raised for the first time on appeal.” Mendez v. State, 28 So. 3d 948, 950
(Fla. 2d DCA 2010). Thus, although appellant did not object to the
sentence at the time it was imposed, he may still raise this argument on
appeal.



1Blockburger v. United States, 284 U.S. 299 (1932) (codified in § 775.021(4), Fla.
Stat. (2011)).


                                        5
   Where a defendant claims that a sentence is vindictive, the defendant
has the initial burden of demonstrating vindictiveness. Vardaman, 63 So.
3d at 927. If this burden is met, it creates a rebuttable presumption of
vindictiveness, which the State must then rebut. Id. However, “[w]here
the totality of the circumstances does not give rise to a presumption of
vindictiveness, the burden remains upon the defendant to prove actual
vindictiveness.” Wilson v. State, 845 So. 2d 142, 156 n.8 (Fla. 2003).

   “When there is judicial participation in plea negotiations, followed by a
harsher sentence, the supreme court has adopted a totality of the
circumstances approach in determining whether a presumption of
vindictiveness arises.” Mounds v. State, 849 So. 2d 1170, 1171 (Fla. 4th
DCA 2003). Factors to consider in determining whether a presumption of
vindictiveness arises include the following:

      (1) whether the trial judge initiated the plea discussions with
      the defendant . . . ; (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.

Wilson, 845 So. 2d at 156 (footnotes omitted).

    When analyzing these factors as applied to this case, no presumption
of vindictiveness arises. As to the first factor, the trial court did not initiate
the plea discussions either prior to trial or during the discussion at trial.
Instead, appellant did so through defense counsel during the court’s
colloquy on his decision to testify.

    As to the second factor, in its discussion of the plea offer, the trial court
did not depart from the role of a neutral arbiter. The trial court merely
indicated that resolution by plea would give certainty to appellant. The
judge did not imply that he was giving appellant a “break” through the plea
offer, as in Vardaman, 63 So. 3d at 929. The court’s comments never went
beyond explaining the process and advising appellant of his exposure at
sentencing.



                                        6
    As to the third factor, there was indeed disparity between the sentence
of thirty months in prison and the initial offer of five years of probation.
However, appellant’s points under the sentencing guidelines required that
the court impose a minimum sentence, without downward departure, of
twenty-two months in prison, if convicted. The court’s sentence of thirty
months in prison was also well within the statutory maximum of fifteen
years for the crime. Although there is a substantial disparity between
probation and thirty months in prison, when measured instead from what
the minimum sentence would be upon the jury’s verdict of guilty, we do
not consider this to be a significantly increased sentence.

   Finally, as to the last factor, the testimony from the victim and his
doctors at sentencing, although it largely mirrored their trial testimony,
presented a more nuanced discussion of the victim’s injuries and focused
on increasing appellant’s sentence, rather than merely obtaining a guilty
jury verdict. In addition, the State requested a sentence of 51.5 months
in state prison after the victim supported a sentence of ten years. Thus,
there were additional factors present influencing the court’s exercise of its
discretion in sentencing.

   Appellant further argues that the trial court misrepresented its ability
to downwardly depart at sentencing, again increasing the perceived risk of
continuing to trial, citing the court’s statement that, “[Y]ou understand
when something is at the bottom of the guidelines, that means the bottom
of my discretion. That even if you were like my own son, that’s the best I
can do.” However, this was not a misrepresentation of the court’s ability:

      The lowest permissible sentence provided by calculations from
      the total sentence points pursuant to s. 921.0024(2) is
      assumed to be the lowest appropriate sentence for the
      offender being sentenced. A departure sentence is prohibited
      unless there are mitigating circumstances or factors present
      as provided in s. 921.0026 which reasonably justify a
      departure.

§ 921.00265(1), Fla. Stat. (2011). The court’s statements appropriately
reflected its inability to go below the guidelines without circumstances
justifying a departure. And there was no request prior to sentencing that
the court consider a downward departure. The court was again acting
within its neutral role of providing information to appellant. See State v.
Warner, 762 So. 2d 507, 514 (Fla. 2000).

   In sum, we conclude that not only did no presumption of vindictiveness
arise in this case, but also that the trial court conducted the plea

                                     7
discussions with appropriate regard to maintaining its neutrality
throughout the proceedings. Indeed, the court is to be commended for not
overstepping its bounds in the plea discussions, yet providing appellant
with as much information as possible on which to weigh his decision with
regard to the offer. We thus find no error in the trial court’s sentence.

   As to the cross-appeal, the State argues that the trial court erred in
setting aside appellant’s conviction on count II at sentencing because
nothing authorized it to do so. The trial court vacated the conviction
because the State had informed appellant prior to trial that it would drop
one of the charges, rather than have him convicted of both. At sentencing,
however, the State explained that it had made an error in believing that
double jeopardy would prevent convictions on both crimes. Therefore, it
contended that it should not be held to its pretrial statements.
Nevertheless, the trial court concluded that fundamental fairness required
vacation of the conviction.

    Because there was no binding agreement, the State argues that its
statement was not a “pledge of public faith,” as explained in State v.
Vixamar, 687 So. 2d 300, 302 (Fla. 4th DCA 1997). In Vixamar, the
defendant struck a bargain with the State in which the State agreed to file
a nolle prosequi to a charge if the State was unable to produce witnesses
at a status check the following week. Id. at 301. At the status check, a
different prosecutor appeared without any witnesses, so the trial court
granted the defendant’s motion to dismiss. Id. The State appealed, and
this Court reversed the dismissal of the charges:

      Not every prosecutorial agreement implicates a pledge of the
      public faith so that specific performance of a promise is
      justified. The unifying theme of those cases holding the state
      to its word is that the defendant’s part of the bargain involved
      either substantial conduct or a serious risk of an adverse
      result or both.

Id. at 302. This Court went on to list cases in which specific performance
on the State’s promise was merited:

      The defendant in [State v. Davis, 188 So. 2d 24 (Fla. 2d DCA
      1966),] submitted to a polygraph exam and agreed to plead
      guilty to manslaughter if the test result was not in his favor.
      The defendant in [Butler v. State, 228 So. 2d 421 (Fla. 4th DCA
      1969),] submitted to a polygraph, with the understanding that
      unfavorable test results could be introduced in evidence at his
      trial. The defendant in [Williams v. State, 341 So. 2d 214 (Fla.

                                     8
      2d DCA 1976),] placed himself at risk by acting as an
      informant for the police. 341 So. 2d at 215. The defendant in
      [Flaherty v. State, 367 So. 2d 1111 (Fla. 3d DCA 1979),]
      completed the pretrial intervention program and was not
      convicted of a felony during a two year period. 367 So. 2d at
      1112. The defendant in [State v. Upshaw, 648 So. 2d 851 (Fla.
      3d DCA 1995),] successfully completed a twelve month
      substance abuse program. 648 So. 2d at 852. The defendant
      in [Charatz v. State, 577 So. 2d 1298 (Fla. 1991),] served five
      months of community control and obtained employment
      which could have continued only if a term of the plea
      bargain—that adjudication be withheld—were to remain in
      force.

Id. at 302. Comparing these cases to the facts in Vixamar, this Court
found that the State had not made a pledge of public faith:

      [T]he acts required of the defendant—that he show up in court
      on a Tuesday—hardly rise to that level of performance in the
      line of cases following Davis so that specific performance of
      the state’s promise is appropriate. Nor was this a case where
      a defendant was unfairly prejudiced by the prosecutor’s
      conduct. Therefore, both dismissal and specific performance
      of the negotiated disposition were improper.

Id. at 302-03. We also found that, even assuming the trial court was
authorized to enforce the disposition agreement, the sanction of dismissal
was excessive, as the lesser sanction of ordering the State to enter a nolle
prosequi, or giving it reasonable time to do so, also would have
accomplished the desired result of enforcing the promise made by the
prosecutor. Id. at 303 (citing State v. Cohen, 662 So. 2d 430 (Fla. 3d DCA
1995); State v. Briggs, 578 So. 2d 901 (Fla. 4th DCA 1991)). Therefore,
“[t]he court’s dismissal went far beyond the disposition negotiated by the
parties.” Id.

    Vixamar supports the State’s position. The State’s assertion that it
would drop a charge was not part of any agreement with appellant.
Appellant concedes that the only prejudice to him was that he considered
it when deciding to go to trial; he did not actually agree to any conditions
in return for the State’s dismissal. There was no pledge of public faith
because there was no bargain on which such a pledge must be based.
Thus, specific performance of the State’s statement that it would drop the
charge was not required, and the trial court erred by requiring such
performance.

                                     9
   Appellant argues that the trial court’s decision to set aside the
conviction at sentencing was supported by promissory estoppel, as the
State’s promise induced him to go to trial to his detriment. The State
counters that it had stated that it would drop the charge because the two
charges were barred by double jeopardy, a mistaken statement of the law.
“Generally stated, promissory estoppel is ‘[t]he principle that a promise
made without consideration may nonetheless be enforced to prevent
injustice if the promisor should have reasonably expected the promisee to
rely on the promise and if the promisee did actually rely on the promise to
his or her detriment.’” DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So. 3d
85, 93 (Fla. 2013) (quoting Black’s Law Dictionary 631 (9th ed. 2009)).
However, “a governmental entity may not be estopped through mistaken
statements of the law . . . .” Branca v. City of Miramar, 634 So. 2d 604,
606 (Fla. 1994). Thus, promissory estoppel does not serve to require that
the charges be dismissed. Because the trial court was not authorized to
vacate the conviction, we reverse the dismissal of the charge.

    For the foregoing reasons, we hold that the sentence imposed by the
trial court was not vindictive, but the court erred in dismissing the count
II at sentencing. We reverse the dismissal and remand for reinstatement
of the charge and for further proceedings thereon.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                    10
