         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


JULIO CESAR CATALA NUNEZ,

              Appellant,

 v.                                                       Case No. 5D15-855

STATE OF FLORIDA,

              Appellee.

________________________________/

Opinion filed May 20, 2016

Appeal from the Circuit Court
for Orange County,
Marc L. Lubet, Judge.

James S. Purdy, Public Defender, and
Kathryn Rollison Radtke, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee,   and     Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee.


LAMBERT, J.

       Following a jury trial, Appellant was convicted of attempted first-degree murder

with a weapon and aggravated battery causing great bodily harm. He was sentenced to

serve life in prison for the attempted murder and a concurrent thirty years in prison for the
aggravated battery.1 In this appeal, Appellant does not challenge his convictions, but he

argues that the trial court committed two fundamental errors in the sentencing process.

First, Appellant asserts that the court imposed a vindictive sentence after he rejected the

court’s plea offer. Second, Appellant alleges that the court improperly considered the

“truthfulness” of Appellant’s testimony at the sentencing hearing prior to imposing

sentence. Because the record establishes a presumption of vindictiveness in the court’s

sentences that has not been adequately rebutted, we vacate the sentences.2

       “The issue of whether a defendant’s sentence is vindictive is a question of law

subject to de novo review.” Simplice v. State, 134 So. 3d 555, 556 (Fla. 5th DCA 2014)

(citing Baxter v. State, 127 So. 3d 726, 734 (Fla. 1st DCA 2013)).           Moreover, the

imposition of a vindictive sentence is fundamental error that may be raised for the first

time on appeal. Rosado v. State, 129 So. 3d 1104, 1109 (Fla. 5th DCA 2013); Mendez

v. State, 28 So. 3d 948, 950 (Fla. 2d DCA 2005) (citation omitted). “The term vindictive—

when used in the context of a claim of vindictive sentence—‘is a term of art which

expresses the legal effect of a given course of action, viewed objectively, and does not

imply any personal animosity between the court and the defendant.’” Mendez, 28 So. 3d

at 950–51 (quoting Harris v. State, 903 So. 2d 363, 366 (Fla. 2d DCA 2005)). Whether a

vindictive sentence was imposed requires appellate courts to examine the totality of the

circumstances, as explained by the Florida Supreme Court in Wilson v. State, 845 So. 2d

142 (Fla. 2003):



       1 The jury also separately found that Appellant did not carry, display, use, threaten
to use, or attempt to use a weapon during the commission of these crimes.
       2   As a result, the second issue is moot and we decline to address it.



                                              2
                      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.
              See [Alabama v.] Smith, 490 U.S. [794,] 799 [(1989).]. 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 [State v.]
              Warner[, 762 So. 2d 507, 514 (Fla. 2000)]; (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.

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

       In the present case, five days before trial, the court held a pretrial hearing, where

the court extended to Appellant a thirty-year plea offer to settle the case and avoid trial.

The court advised Appellant that, if he lost at trial, there was “certainly a possibility” that

Appellant could receive a life sentence. The court stated that it had heard some of the

facts of the case and knew that the victim: (1) suffered a “terrible, terrible” injury, (2) has

a permanent colostomy, and (3) was stabbed four times in the chest and stomach. The

court indicated that it was also aware of the existence of a video depicting Appellant

running away from the crime scene with a knife and, while acknowledging that it did not

know the defenses Appellant may raise at trial, the court observed that it “sounds like [the

State has] a pretty strong case.” The court reiterated to Appellant that, while thirty years

in prison is a “long time,” if Appellant received a life sentence, he “will die in prison” and




                                              3
“will never see [his] family again as a free man.” The court thereafter advised Appellant

that the court had “sentenced a lot of people to life in prison for less than [the facts of this

case]” and that if found guilty, Appellant would not be guaranteed a thirty-year sentence

and could receive a life sentence. The court again observed that “this was a terribly

aggravated situation” and that if Appellant had committed the acts as alleged by the State,

then he had caused “serious permanent injury to another person [who] will never be the

same again.” The court further cautioned Appellant that things were “not going to get any

better” and “very well could get a lot worse.” Appellant did not accept the court’s plea

offer.

         At the commencement of trial, the court again extended its thirty-year plea offer to

Appellant, noting the possibility of a life sentence if convicted, which the court cautioned

meant that Appellant would “die in the state penitentiary.” Appellant was placed under

oath and rejected the offer, testifying that he wanted to proceed with the jury trial because

“I am innocent—it was self-defense.”

         Applying the four-part test described in Wilson, we conclude that Appellant is

entitled to relief. First, the trial court made the plea offer.3 Second, and as commendably

conceded by the State in its answer brief, the trial court, by its comments, appeared to be

strongly advocating for Appellant to accept its plea offer. The existence of these first two

circumstances, followed by a harsher sentence after trial, is presumed to be vindictive.

See Rosado, 129 So. 3d at 1109. Third, as also acknowledged by the State, the disparity

between the pretrial offer and the sentence after trial is significant. Cf. Evans v. State,




        At the sentencing hearing, both the prosecutor and Appellant’s trial counsel
         3

confirmed that the State had not made a plea offer to Appellant.


                                               4
979 So. 2d 383, 386 (Fla. 5th DCA 2008) (reversing denial of defendant’s motion for

postconviction relief based on a claim of vindictive sentencing where trial court imposed

life sentence after the defendant rejected court’s thirty-year plea offer without explaining

reason for the increased sentence). As to the fourth prong in Wilson, while the trial court

did explain at the sentencing hearing that the increased sentence was based upon trial

testimony evidencing the viciousness, aggressiveness, and senseless nature of the

attack, we nevertheless conclude, in light of the existence of the other three factors under

Wilson and the court’s own statements at the pretrial hearing evidencing the court’s

awareness that this case involved a terribly aggravated situation which resulted in serious

permanent injury to the victim, examining the totality of the circumstances, that the

presumption of vindictive sentencing has not been overcome. Accordingly, we vacate

Appellant’s sentences and, as required by Wilson, remand for resentencing before a

different judge.

       CONVICTIONS AFFIRMED; SENTENCES VACATED; and REMANDED for

resentencing.

PALMER and TORPY, JJ., concur.




                                             5
