"Let's make a deal"; the problem of vindictive sentencing: judges have nearly unlimited discretion in sentencing defendants to maximum statutory sentences. The facial legality of maximum sentences can lead to increases in vindictive sentencing claims.

• Author: Lewis, Mark F.

"And God saw their works, that they turned from their evil way; and God repented of the evil, which He said He would do unto them; and He did it not."

3 JONAH 10

"Repentance has a role in penology. But the premise of our criminal jurisprudence has always been that the time for repentance comes after trial."

Gillman v. State, 373 So. 2d 935, 938 (Fla. 2d DCA 1979)

It's a procedure that is very common in the daily operations of our criminal justice system. In an effort to resolve a pending matter short of trial, the prosecutor makes a plea offer to the defendant. For whatever reason, the defendant rejects the offer. The judge becomes involved and makes an offer of his own. This too is rejected and the defendant proceeds to a jury trial and is found guilty. The judge then imposes a sentence that, while legal, greatly exceeds his initial offer. Defendant now appeals, claiming that the sentence was vindictive, given in retaliation for his exercising of the fundamental right to a jury trial.

Will such an argument succeed? In many cases, the answer is yes. Whether the increased sentence will be upheld will depend to a large extent on what the trial judge said and, in some instances, on what he didn't say.

A defendant's right to trial by jury is virtually sacred. Except in limited situations regarding minor offenses (1) the Constitution of the State of Florida provides that "[t]he right of trial by jury shall be secure to all and remain inviolate" (2) A corollary to this principle is that a defendant should not be punished for exercising this right: "A defendant's fear of retribution in sentencing cannot be permitted to chill the exercise of her Fifth Amendment privilege against self-incrimination, or her Sixth Amendment right to have her guilt or innocence determined by a jury." McDonald v. State, 751 So. 2d 56, 58 (Fla. 2d DCA 1999). But does this necessarily mean that, after a jury finding of guilty, a judge is bound to sentence the defendant to the same terms as those contained in his pretrial offer? As a general rule, the answer is "no." As the Fourth District Court has stated, "by rejecting the offer of a lesser sentence, the accused assumes the risk of receiving a harsher sentence." Gardner v. State, 699 So. 2d 798, 800 (Fla. 4th DCA 1997).

However, as the Third District Court has made clear, the reason for any sentence that exceeds the original offer must be based on something other than the decision to go to trial: "The defendant cannot be heard to complain if the fact that his sentence is greater than the plea offer is the result, not of the assertion of his rights, but of his rejection of the proposed agreement and of the fair conclusion as to his punishment which the court has the consequent ability to render." Frazier v. State, 467 So. 2d 447,450 (Fla. 3d DCA 1985). The critical inquiry, then, for an appellate court, is determining whether the record supports the state's claim that the sentence is appropriate for the crime, regardless of whether defendant's guilt was determined by a plea or a jury finding.

An analysis of this issue must begin with an examination of the Florida Supreme Court's decision in State v. Warner, 762 So. 2d 507 (Fla. 2000), where the court, after determining that it is proper for trial judges to enter into plea discussions with defendants, (3) set forth the ground rules for such negotiations. (4)

Essentially, the court set forth three basic principles: First, "[t]he judge may state on the record the length of sentence which, on the basis of information then available to the judge, appears to be appropriate for the charged offense." Id. at 514. According to the second principle, the "judge's preliminary evaluation of the case is not binding, since additional facts may emerge prior to sentencing which properly inform the judge's sentencing discretion." Id. The claim of vindictive sentencing is avoided by the judge's adherence to the third principle: "To avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant's right to trial." Id.

Clearly an appellate court's task is easier when the trial judge, often in a pique of frustration, makes it clear that such a "procedural choice" was in fact the reason for the increased sentence. In King v. State, 751 So. 2d 691 (Fla. 2d DCA 2000), the defendant, while on probation for a lewd and lascivious conviction, was arrested for a similar offense. The state had made him an offer of 15 years in Florida State Prison as a prison releasee reoffender to resolve all pending matters. The defendant rejected this offer and proceeded to trial, where a jury found him guilty of the new substantive offense. Even after this occurred, the trial judge offered the defendant the same offer to resolve the still-pending probation violation. Not only did the defendant...