       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           RICHARD WALKER,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D14-3477

                             [June 15, 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.

                        ON MOTION FOR REHEARING

WARNER, J.

   In his motion for rehearing, appellant contends that our opinion
conflicts with Wilson v. State, 845 So. 2d 142 (Fla. 2003), and its progeny,
because we concluded that the disparity of the sentence appellant received
and the lowest permissible sentence that he could have received had he
gone to trial was not significant. Instead, appellant claims that, based on
Wilson, it is mandatory that we look only to the plea offer and the sentence
ultimately received, and not consider the lowest permissible sentence
under the Criminal Punishment Code or other applicable statutes. We
disagree that we are afoul of Wilson.

   In Wilson, the court considered the various factors necessary to
determine whether a presumption of vindictiveness in sentencing has
occurred:
      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 Warner; (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. at 156 (emphasis added) (footnote omitted). Neither Wilson nor the
other cases cited by appellant, including Pierre v. State, 114 So. 3d 319
(Fla. 4th DCA 2013); Mounds v. State, 849 So. 2d 1170, 1171 (Fla. 4th
DCA 2003); and Vardaman v. State, 63 So. 3d 925, 926 (Fla. 4th DCA
2011), discuss the court’s consideration of the lowest permissible sentence
under the Criminal Punishment Code or other mandatory sentencing
statutes which would apply at trial but which the State may waive in a
plea agreement.

    If the defendant rejects a plea and goes to trial, the trial court is
required to sentence in accordance with the statutes. That would mean
imposing the lowest permissible sentence based upon point total or
mandatory minimums, if applicable. Such a sentence may be significantly
in excess of a plea agreement, but it can hardly be considered vindictive
where the trial court is required to impose it. In analyzing whether there
is a disparity between a plea and the ultimate sentence, we should include
what the minimum sentence upon conviction might be.

    In this case, the State offered appellant a probationary sentence. The
trial court informed appellant that if he were to be convicted, his sentence
would be at least 22.5 months. Appellant proceeded to trial and was
sentenced to thirty months in prison, followed by eighteen months of
probation. If we were to measure only from the proposed plea agreement
sentence of probation, then any sentence to prison would be substantially
greater than the plea. Yet, the sentence in this case was hardly one so
onerous that it would satisfy the third factor in Wilson. See Wilson, 845
So. 2d at 156.

   The factors set forth in Wilson are helpful in determining whether,
based upon the totality of circumstances, a presumption of vindictiveness

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arises. They are not nearly as rigid as appellant would project them to be.
In this case, his sentence was not so out of line as to suggest
vindictiveness.

   The motion for rehearing is denied.

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

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