Full Opinion

FIFTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Case No. 5D2026-0525 LT Case No. 09-2024-CF-498-A _____________________________ HOLLIE JOANNE NOBLES, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Citrus County. Joel D. Fritton, Judge. Matthew J. Metz, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant. James Uthmeier, Attorney General, Tallahassee, and Stephen R. Putnam, Jr., Assistant Attorney General, Daytona Beach, for Appellee. November 6, 2026 PER CURIAM. Hollie Joanne Nobles challenges her sentence following an evidentiary hearing on a violation of probation, contending that the sentence is vindictive. In response, the State concedes that it “does not have a basis to counter [Nobles’s] claim. If this Court is in agreement, this case should be remanded for resentencing before a different trial judge.” We agree. Nobles was serving 36 months of drug offender probation when she was found in possession of, and tested positive for, methamphetamine. At a change of plea hearing, she admitted to violating probation and her counsel indicated Nobles “would be willing to do community control with a suspended sentence of five years,” but the trial judge said, “No. We don’t go backwards. Apparently the prison sanction wasn’t enough the first time or the second or the third.” The Department of Corrections, aware of Nobles’s criminal record, had recommended that she be “sentenced to a new term of probation for 3 years with special condition that the offender complete an inpatient substance abuse treatment program and remain in jail until a bed opens at a Department of Corrections approved Treatment Center.” It further recommended that Nobles be returned to “community supervision for the remainder of her term of probation.” After reviewing and commentating on Nobles’s criminal history, the trial judge offered that “[i]f she wants to enter a plea here today it would be 36 months in the Florida Department of Corrections.” Nobles chose, instead, to proceed to a final hearing. The trial judge tried to hold the final hearing immediately (“Clear the table, let’s go”), but Nobles’s probation officer was away in training, so the trial judge set the hearing for later that week, concluding, “[w]e’ll do the hearing. And that maximum possible punishment is five years in prison.” During closing argument at the final hearing, the trial judge interrupted Nobles’s counsel, saying, “you can appeal if you want, but I’m going to find the State did prove its burden,” adjudicating her guilty, and sentencing her to the maximum of 60 months in prison. Nobles’s counsel asked to “complete the rest of her argument” which was based on a Fourth District case. She completed her argument, the trial judge expressed disagreement with the case (“I don’t know where the Fourth DCA is coming up with that”) and again sentenced Nobles to the 60 month/five year maximum. On appeal, Nobles and the State both agree that the trial judge was an active participant in the change of plea hearing (to 2 the point of making an offer for Nobles to accept) and that nothing explains why he dramatically increased her sentence (from the 36 months offered to the maximum of 60 imposed) other than Nobles’s exercise of her right to a hearing. As this Court explained in Pickard v. State, 417 So. 3d 491 (Fla. 5th DCA 2025): “When a trial court imposes a harsher sentence after participating in plea negotiations, the appellate court must review the totality of the circumstances to determine if the sentence is vindictive.” Simplice [v. State], 134 So. 3d [555,] 556 [(Fla. 5th DCA 2014)]. These circumstances include: (1) whether the court initiated plea discussions with the defendant, (2) whether the court appears to have departed from its impartial role by urging the defendant to accept a plea or by implying that going to trial would influence sentencing, (3) the disparity between the plea offer and the sentence imposed, and (4) the lack of any facts to explain the increased sentence other than the defendant exercising his right to a trial or hearing. Id. at 556–57 (quoting Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003)). Id. at 494. Under the totality of the circumstances, and application of these four factors, we conclude that Nobles’s sentence is a vindictive one. Each of the four factors supports this result. The trial judge actively participated in the change of plea hearing to the point of making an offer for Nobles to accept. He made many comments about Nobles’s prior criminal record, including her incarceration history, emphasizing that Nobles’s prior “prison sanction wasn’t enough the first time or the second or the third.” The trial judge implicitly encouraged Nobles to accept his offer as reflected in his commentary. When she declined the offer, he abruptly tried to hold the final hearing then and there. When that did not occur, his last words were: “We’ll do the hearing. And that maximum possible punishment is five years in prison.” This again suggests he would impose a harsher sentence at the final hearing. The disparity between the sentence offered and the sentence imposed is obvious: a 24-month increase from 36 months to the maximum of 60 months. Finally, as the State commendably points out, there “is 3 nothing in the record to explain why the trial court went from a 36-month sentence to a 60-month sentence” such that the “presumption that the trial court acted vindictively cannot be dispelled.” Nothing explains why the trial judge’s 36-month offer escalated into the 60-month maximum sentence other than Nobles’s exercise of her right to request a hearing. Vindicative sentencing is thereby established. In summary, the totality of the circumstances establish that Nobles was subject to vindictive sentencing and is entitled to a new sentencing hearing before a different judge. REVERSED and REMANDED for further proceedings. MAKAR and WALLIS, JJ., concur. EISNAUGLE, J., concurs in result only with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 4 Case No. 5D2026-0525 LT Case No. 09-2024-CF-498-A EISNAUGLE, J., concurring in result only. I agree that we must reverse Appellant’s sentence, but I cannot join some of the majority’s discussion. I will not endeavor to explain them all, but as one example, it appears that the hearing in this case was set as a VOP hearing. Therefore, the trial court’s desire to proceed with the hearing is not unexpected. That said, while some of the factors are not met in this case, I agree that remand for resentencing is required based on a totality of the circumstances. See Pickard v. State, 417 So. 3d 491, 494 (Fla. 5th DCA 2025). 5