                 FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


ANDRES HERNANDEZ,                            )
                                             )
             Appellant,                      )
                                             )
v.                                           )       Case No. 2D12-2786
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed August 15, 2014.

Appeal from the Circuit Court for Manatee
County; Janette Dunnigan and Thomas W.
Krug, Judges.

Howard L. Dimmig, II, Public Defender, and
Allyn M. Giambalvo, Assistant Public
Defender, Bartow, for Appellant.

Andres Hernandez, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Johnny T. Salgado,
Assistant Attorney General, Tampa, for
Appellee.


DAVIS, Chief Judge.

             Andres Hernandez challenges his convictions and sentences for burglary

of an unoccupied dwelling, petit theft, and obtaining money from a pawnshop by fraud.
Hernandez entered open no contest pleas to the charges, and sentencing was put off

for sixty days in order to allow Hernandez to provide substantial assistance to the State

in the form of information about his codefendant and other crimes. At sentencing, the

trial court found that Hernandez had not provided substantial assistance and sentenced

him to fourteen years on the burglary, five years on the fraud, and time served on the

theft. Because the totality of the instant circumstances create an unrebutted

presumption of vindictive sentencing, we reverse.1

              After entering no contest pleas without reserving the right to appeal any

dispositive issues, Hernandez is limited to raising the following issues on appeal: (1)

lack of subject matter jurisdiction; (2) violation of plea agreement, if preserved by a

motion to withdraw plea; (3) voluntariness of plea, if preserved by motion to withdraw

plea; or (4) a sentencing error, if preserved. See Fla. R. App. P. 9.140(b)(2)(A)(ii).

              He raises a sentencing error, arguing that the fourteen-year sentence

imposed on the burglary count is the result of vindictive sentencing.2 There is a

presumption of vindictiveness where, when considering the totality of the


              1
               "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 v. State, 28 So. 3d 948, 950-51 (Fla. 2d DCA 2010) (quoting
Harris v. State, 903 So. 2d 363, 366 (Fla. 2d DCA 2005)).
              2
               We note that although Hernandez has not filed a postconviction motion to
correct this sentencing error, there is no preservation issue to prevent him from raising it
now. Vindictive sentencing has been recognized as an error in the sentencing process
that need not be preserved by a Florida Rule of Criminal Procedure 3.800(b) motion.
See Rosado v. State, 129 So. 3d 1104, 1108 (Fla. 5th DCA 2013) ("[A] claim of
vindictive sentencing is 'an error that occurs during the sentencing process, not an error
in the sentencing order,' Jackson [v. State], 983 So. 2d [562, 574 (Fla. 2008)], and is
therefore not a sentencing error within the meaning of rule 3.800(b)."). Furthermore,
this court has held that "imposition of a vindictive sentence is fundamental error that
may be raised for the first time on appeal." Mendez, 28 So. 3d at 950.


                                            -2-
circumstances, there is a "reasonable likelihood" that "[j]udicial participation in plea

negotiations followed by a harsher sentence" is the result of retaliation for the

defendant's exercising a certain right. Mendez v. State, 28 So. 3d 948, 950 (Fla. 2d

DCA 2010) (quoting Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003)).

                     [F]actors that should be considered include but are
                     not limited to[ ] (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.

Id. (quoting Wilson, 845 So. 2d at 156).

              Here, Hernandez bases his claim of vindictive sentencing on the following

exchange at the plea hearing:

                     [PROSECUTOR]: . . . [T]he defense approached me
                     about the idea of hoping that the mitigation [of
                     substantial assistance] reduces it to a five-year
                     recommendation from the State. So that was the
                     number that has been thrown out by them. And
                     again, we made no promises, but I'm keeping that in
                     mind based on—

                     THE COURT: Okay. So the court right now, you are
                     offered a guaranteed plea of five years in state prison;
                     is that—

                     [PROSECUTOR]: Not from the State, no. The State's
                     offer as it sits today is 15, but the Defense countered
                     with substantial assistance, hoping to get five.




                                             -3-
                    THE COURT: So that's your goal is in hopes that, if
                    the information is of value, that the sentence would be
                    somewhere around five years in prison?

                    [DEFENSE COUNSEL]: No, Judge. Our intent is to
                    go bottom of the guidelines or lower if the help is
                    good.

                    THE COURT: Okay.

                    [HERNANDEZ]: My original plea, I mean the first plea
                    he gave me was five years plea [sic]. I didn't take it.

                    ....

                    THE COURT: So let me ask you this question. Do
                    you want to—do you want to have the sentencing
                    issue resolved today and accept the five years that
                    the State had previously offered? Because if you
                    want to know what is going to happen, then I will take
                    your plea and I will sentence you to the five years that
                    the State had previously offered you. If you want to—
                    and that's without help, and then if you do provide
                    assistance, then you can come back in and ask to
                    have it mitigated within 60 days. But that's the only
                    way that I can tell you that you can be assured of
                    what is going to transpire at sentencing. If you want
                    to accept the State's original offer, I will honor it.

             Hernandez opted to enter an open plea and wait thirty days for

sentencing, during which period he planned to provide substantial assistance to law

enforcement in the hope of getting a bottom of the guidelines sentence (which was

28.575 months). When he returned for sentencing, the trial court determined that he

had not provided substantial assistance to law enforcement and imposed the fourteen-

year term on the burglary and the concurrent five years on the fraud charge.

             Applying the factors discussed in Mendez, the trial court clearly initiated

plea negotiations at the plea hearing by offering Hernandez the State's original five-year

deal if he would agree to being sentenced that day. Furthermore, Hernandez's



                                           -4-
fourteen-year sentence is undeniably harsher than the five-year offer, and there is

nothing in the record to explain the increase in the sentence. At sentencing, the trial

court pointed to the fact that Hernandez failed to provide substantial assistance to law

enforcement, but at the time the court made the five-year offer, Hernandez had provided

no assistance. If the court considered five years to be an appropriate sentence at a

time when Hernandez had made no effort to provide assistance to law enforcement, his

subsequent failure to do so cannot serve as a reason to increase the sentence to

fourteen years. The court also mentioned Hernandez's criminal history, but that too was

a condition the trial court was aware of at the time it made the five-year offer.

              We do note that at the sentencing hearing, the investigating detective was

allowed to testify that Hernandez was "going to be charged with eight counts of

residential burglary and another nine counts of dealing in stolen property once this case

is resolved." Over defense objection, the detective was allowed to list the dates,

locations, and items taken for eight other burglaries Hernandez was suspected of

committing but for which no charges had yet been filed against him. These facts,

however, could not serve as a change in circumstances by which to increase

Hernandez's sentence from the five-year offer because uncharged crimes cannot be

considered when determining a sentence. See Martinez v. State, 123 So. 3d 701, 703

(Fla. 1st DCA 2013) ("A sentence within statutory limits . . . is generally unassailable on

appeal. But a sentence cannot stand, at least on direct appeal, if the sentencing judge

considered constitutionally impermissible factors in arriving at the sentence. Relying on

pending or dismissed charges, in effect deeming such charges established without

proof or a conviction, violates a defendant's right to due process." (citations omitted)).




                                            -5-
             Based on the totality of the facts of this case, there is an unrebutted

presumption that the harsher sentence imposed was the product of vindictive

sentencing. Accordingly, we reverse and remand for resentencing before a different

judge.

             Reversed and remanded.




NORTHCUTT and MORRIS, JJ., Concur.




                                          -6-
