               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                         IN THE DISTRICT COURT OF APPEAL
                                         OF FLORIDA
                                         SECOND DISTRICT



CALVIN FORMAN,                   )
                                 )
           Appellant,            )
                                 )
v.                               )                  Case No. 2D15-5165
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed October 20, 2017.

Appeal from the Circuit Court for
Pinellas County; Philip J. Federico,
Judge.

Howard L. Dimmig, II, Public Defender,
and Benedict P. Kuehne, Special
Assistant Public Defender, Bartow, for
Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for
Appellee.


KELLY, Judge.

             Calvin Forman appeals from his judgment for aggravated battery and his

twenty-five-year prison sentence. We affirm the conviction without comment. We

reverse the sentence and remand for resentencing before a different circuit court judge.
               At the conclusion of jury selection, defense counsel told the trial judge that

Forman would enter a nolo contendere plea in exchange for a reduction in the charge to

felony battery. When the prosecutor declined to reduce the charge, the trial judge said

he might agree to a sentencing cap in exchange for a plea to aggravated battery. The

trial judge then asked to go off record to further discuss the matter contrary to the

directive in State v. Warner, 762 So. 2d 507, 514 (Fla. 2000) ("A record must be made

of all plea discussions involving the court."). No agreement was reached and the trial

proceeded to opening statements.

               Midtrial, when the State encountered difficulties in producing a material

witness, the trial judge initiated plea negotiations, which is also prohibited by Warner.

Id. at 513 ("The trial court must not initiate a plea dialogue; rather, at its discretion, it

may . . . participate in such discussions upon request of a party.") After discussions

with defense counsel regarding what kind of plea Forman might agree to and what

sentence the judge might be willing to impose, the judge asked the prosecutor if he

would consider reducing the charge given the problem with the State's witness. The

prosecutor said he would consider it. The judge pressed the prosecutor further on this

point and then directed defense counsel to find out if Forman would enter a plea to a

reduced charge of felony battery as a habitual offender in exchange for 6.3 years in

prison, which was at the bottom of Forman’s recommended sentencing guidelines

range. The judge added that if Forman said no, he was going to continue the trial so

the State could secure the attendance of its witness. No further discussions regarding a

possible plea appear in the record, but Forman obviously said "no" because the case

was continued as promised. Ultimately, the jury convicted Forman as charged, and the




                                              -2-
judge sentenced him to twenty-five years in prison. The judge's comments at

sentencing offer no explanation of the grounds for the twenty-five-year sentence other

than the nature of the crime and Forman's extensive criminal history, all of which were

known to the judge when he offered to accept a plea in exchange for a sentence of 6.3

years. See Warner, 762 So. 2d at 514 (noting that a judge's preliminary evaluation of

the case is not binding if additional facts emerge prior to sentencing which affect the

judge's sentencing discretion).

              The nature and extent of the trial judge's involvement in the plea

negotiations, the off-the-record discussion, and the subsequent imposition of a sentence

that was significantly harsher than the one he had initially offered is sufficient to give

rise to a presumption of judicial vindictiveness. See Wilson v. State, 845 So. 2d 142,

156 (Fla. 2003) ("[I]f the judge participates in the plea negotiations beyond what is

contemplated by Warner, or by his or her comments appears to have departed from the

role of a neutral arbiter, then these actions alone may give rise to a presumption of

judicial vindictiveness . . . ."); Harris v. State, 903 So. 2d 363, 366 (Fla. 2d DCA 2005)

(concluding the State had failed to overcome a presumption of vindictiveness where the

trial court initiated off-the-record plea discussions, departed from its role as a neutral

arbiter, and imposed a sentence significantly harsher than the plea offer). The State

points to nothing in the record that is sufficient to rebut that presumption. The totality of

the circumstances leads us to conclude that Forman is entitled to relief pursuant to

Wilson. We therefore reverse the sentence imposed and remand for resentencing

before a different circuit court judge. See Wilson, 845 So. 2d at 159.

              Conviction affirmed, sentence reversed, case remanded for resentencing.




                                             -3-
WALLACE and BADALAMENTI, JJ., Concur.




                                  -4-
