Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MICHAEL RYAN, ) ) Appellant, ) ) v. ) Case No. 2D18-1338 ) Case No. 2D18-2664 STATE OF FLORIDA, ) ) TRAVELING TOGETHER Appellee. ) NOT CONSOLIDATED ___________________________________) Opinion filed October 30, 2020. Appeal from the Circuit Court for Pinellas County; Frank Quesada, Judge. Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee. KHOUZAM, Chief Judge. In these two appeals, which are traveling together, Michael Ryan challenges his convictions and sentences for possession of a controlled substance in three trial court case numbers. Because Ryan has shown a reasonable likelihood that his sentences were vindictive, we reverse and remand for resentencing before a different judge.1 In 2D18-2664, Ryan appeals his conviction and sentence for possession of a controlled substance in trial court case number 17-04110-CF-K. After rejecting the trial court's plea offer for a bottom-of-the-guidelines sentence of 29.55 months, Ryan opted to proceed to a jury trial. He was found guilty and sentenced to thirty-six months in prison. In 2D18-1338, Ryan appeals his convictions and sentences on two counts of possession of a controlled substance, each charged in a separate trial court case number (17-04258-CF-K and 17-04640-CF-K) but ultimately consolidated and tried together. At the beginning of trial, the court offered Ryan concurrent sentences of three years in prison on each count if he entered a plea. The court warned him that he could get up to ten years if he went to trial. Ryan proceeded to trial and was ultimately sentenced to three years on each count, to run consecutively to each other and to the three-year sentence in 17-04110-CF-K. APPLICABLE LAW Ryan argues that his sentences were vindictive. "[I]mposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal." Mendez v. State, 28 So. 3d 948, 950 (Fla. 2d DCA 2010). "Appellate courts should look at the totality of the circumstances when determining whether a defendant's constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations in which the trial court participated." Id. 1We understand that the circuit court judge has since retired. -2- (quoting Harris v. State, 903 So. 2d 363, 366 (Fla. 2d DCA 2005)). Where there is a "reasonable likelihood" that the harsher sentence resulted from the sentencing judge's actual vindictiveness, a presumption that the sentence is vindictive arises. Id. (quoting Cambridge v. State, 884 So. 2d 535, 537 (Fla. 2d DCA 2004)). "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.' " Id. at 950-51 (quoting Harris, 903 So. 2d at 366). The Florida Supreme Court has explained: 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. 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, 513 (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. Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003) (footnotes omitted) (citation omitted). In Warner, the Florida Supreme Court held that judicial participation in the plea bargaining process is permissible but "must be limited 'to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, -3- and to preserve the public perception of the judge as an impartial dispenser of justice.' " State v. Warner, 762 So. 2d 507, 513 (Fla. 2000) (quoting People v. Cobbs, 505 N.W.2d 208, 212 (Mich. 1993)). "The trial court must not initiate a plea dialogue; rather, at its discretion, it may (but is not required to) participate in such discussions upon request of a party." Id. "Once involved, the court may actively discuss potential sentences and comment on proposed plea agreements." Id. at 514. "The 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. "A 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. "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. "If a plea is either not entered into or withdrawn, the judge who participated in the plea bargaining process will not automatically be subject to recusal in the case." Id. Indeed, "[a] judge's candid statement of how a case appears at an early stage of the proceedings does not prevent the judge from deciding the case in a fair and evenhanded manner later, when additional facts become known." Id. (alteration in original) (quoting Cobbs, 505 N.W.2d at 212). -4- FACTS I. The Nelson Hearing A Nelson2 hearing was held in all three circuit court case numbers. Though Ryan ultimately withdrew his Nelson objection, during this hearing the judge offered to give Ryan a bottom-of-the-guidelines sentence: THE COURT: Here's the bottom line. At this point, . . . I'll sentence you to the shortest lawful prison sentence I can give you, shortest lawful sentence I can give you period, whether it's prison or not. The judge later indicated that if Ryan "play[ed] with" him, Ryan would get a harsher sentence: THE COURT: Yeah. We're going to tee it up for trial. You know, the question is not the ones that were dropped but the ones that you pled to. All right. And I'm telling you again, if you want to plead straight up, and you want to require the State to prove that those are your fingerprints on those judgments and sentences, you pick out the ones that you want them to do that in and I'll require that they do. But at this point— THE DEFENDANT: All of them. THE COURT: All of them? Yeah. And then you need to understand that my discretion is between 34.5 months and 15 years. THE DEFENDANT: Yes, sir. THE COURT: And you play with me a whole lot and it won't be 34.5 months. I'm making myself real clear. THE DEFENDANT: I'm not playing with you, sir. I'm trying—I'm trying to get the State—I'm trying to get— 2Nelson v. State, 274 So. 2d 256, 258-59 (Fla. 4th DCA 1973). -5- THE COURT: All right. So, require the State to prove up all of those convictions and I'll accommodate you. And I'll give you about four days to do that. And you can sentence me to four days sitting up here listening to that stuff, and you'll find that I'll take that into consideration at the time I sentence you. During the Nelson hearing, there was also extensive discussion of Ryan's prior record, and the State agreed to remove incorrect priors on his scoresheet. II. The First Trial On the day of trial in case number 17-04110-CF-K, Ryan stated that he wanted to resolve all of his cases. The judge stated that if Ryan entered a plea, he would sentence him to a bottom-of-the-guidelines sentence. At this point, the lowest permissible sentence was 29.55 months because, when the State researched to correct the mistakes on Ryan's scoresheet, it found additional priors to add. After the State refused to entertain offers because it was the day of trial, the court explicitly made an offer: THE STATE: Judge, there's no offers. This [is the] day of trial. THE COURT: All right. THE STATE: It's going to trial. THE COURT: Well, then here it is, sir. He's not going to make you an offer, I will. Bottom of the guidelines. The shortest lawful prison sentence I can impose—what is it? THE STATE: 29.55. Ryan opted to proceed to trial, at which an officer testified that he had personally observed Ryan smoking spice (synthetic marijuana). On the afternoon of -6- April 5, 2017, he was working as part of the downtown deployment team near Williams Park in St. Petersburg, Florida. A woman came up to him screaming and directed his attention to active drug use in the park. He observed Ryan and another man smoking and passing a joint between them. Within seconds of smoking it, the men passed out and were completely unconscious. The officer recovered the joint from the other man's hand. The men came to a couple of minutes later. When they realized they were being investigated for spice, the other man stated, "I got no Spice left. I tossed it and you ain't gonna find it." Ryan added, "You ain't fucking got the Spice, so you ain't got fucking nothing." Ryan was found guilty and sentenced to thirty-six months in prison. III. The Second Trial Again, on the day of trial in the remaining two case numbers, the trial court participated in plea negotiations, offering Ryan a "BOGO" deal: DEFENSE COUNSEL: We've talked to him about concurrent time, and he has just kind of gone round and round. He doesn't— THE COURT: Well, discuss it with him. We have a, you know, BOGO today. Buy one, get one free. He can plead to one and we'll toss the other one in. THE STATE: Very good. THE COURT: All right. THE STATE: Thank you. THE COURT: Explain that to him, will you please? DEFENSE COUNSEL: He's not a big fan of mine. THE STATE: Yeah. -7- THE COURT: Well— THE STATE: Normally when we have a conversation with him— THE COURT: Explain to him what consecutive means. THE STATE: Yeah. The court stated that it intended to sentence Ryan to concurrent three-year sentences if he entered a plea but that he was facing up to ten years consecutive to the three-year sentence already imposed in his other case: THE COURT: It would be my intentions to sentence you concurrently so that all three of your convictions would run together. It would be, in effect, one three-year sentence. THE DEFENDANT: Yes sir. THE COURT: And if you wish to accept that, I'm prepared to sentence you today, understanding that, of course, you could be sentenced if you went to trial. You could be sentenced up to— THE STATE: 10 years. THE COURT: 10 years consecutive to the three that you're serving. All right? So you understand what's going on here? THE DEFENDANT: Yes sir. Ryan continued to try to negotiate a plea with the judge: THE DEFENDANT: Is there any way we can maybe go down to, maybe, two years? THE STATE: Just, let's just bring the panel in. This— THE COURT: Sir, I really have no intention to negotiate with you now, and I just need to tell you that we need to get through this. I've got 25 of your fellow citizens standing in the hallway for you. And the more they get delayed, the more aggravated they get, and then, of course, my -8- experience is they take it out on you or the State. They're not too sure who they're going to take it out on. THE DEFENDANT: Well, they get paid by—half of them will get paid by the State, so I'm not going to bother with all that. THE COURT: All right. Well, you understand what we're going to do here today? THE DEFENDANT: Yeah. THE COURT: All right. Go over a plea form with him, counsel. DEFENSE COUNSEL: I will, Your Honor. Thank you. After his attorney presumably went over the plea form with him, Ryan continued to complain about prior convictions on his record. The State requested that Ryan be held in contempt, and the court warned him that "should you start cutting up in the presence of this jury, a mistrial or request for another panel is not going to be granted if you, in fact, cause the problem." Ryan responded that he would plead out, but at this point the judge went forward with the jury trial: THE DEFENDANT: Well let's go ahead and plea out then. This is not set for a jury trial. THE COURT: That was our suggestion, sir. I could try this case in less time than it'd take to take [a] plea from you, and that's exactly what I'm going to do. Bring in the panel. THE DEFENDANT: No sir. I do not want—I do not want a jury trial. THE COURT: Don't worry about it. It's a drop back and fall position. You get a jury trial whether you want it or not. (Prospective jurors present.) THE BAILIFF: 3208? THE DEFENDANT: Do what? -9- THE BAILIFF: Right here, sir. THE DEFENDANT: You're saying I get a jury trial if I want one or not? THE COURT: That's it. Yes sir. Absolutely. The trial was held, and the following evidence was presented. An officer testified that he was patrolling downtown St. Petersburg at 9:47 p.m. on February 17, 2017, when he observed Ryan slumped over in his wheelchair. As the officer approached Ryan to check on his welfare, he noticed a hand-rolled joint in his left hand. The officer put his hand on Ryan's shoulder, and he woke up, though he was a little lethargic. The officer collected the joint and told Ryan that he was going to send it for further analysis at the laboratory. He asked the officer to please not do that because it was just spice. Another officer testified that he came into contact with Ryan on March 20, 2017, at approximately 2:15 p.m. The officer had been flagged down by a concerned citizen in reference to two different individuals. One of them was passed out on a sidewalk, and Ryan was passed out in his wheelchair. Ryan was coming to as the officer approached. A partially smoked spice joint was found at the foot of Ryan's wheelchair. Ryan admitted that the joint was his. He indicated that he had recently bought two spice joints and smoked them. Ryan testified that on these two occasions he was not intoxicated in any way, shape, or form. At the time of the first incident, he was just waking up and was a bit groggy, but otherwise he was alert and coherent. He had not smoked or purchased spice. He only told the officer that he had done so because the officer threatened him. - 10 - The officer indicated it would be an ordinance violation instead of a felony charge if Ryan confessed. He said that the police were "very, very prejudiced" against him. The State recalled the second officer, who stated that he did not lie about what Ryan had told him and that he had not arrested Ryan on charges he did not commit. The jury found Ryan guilty, and the court proceeded to sentencing. The State requested consecutive sentences based on his prior record in the community. Ryan was sentenced to three years on each count to run consecutively to each other and to the three-year sentence in 17-04110-CF-K. ANALYSIS Considering the totality of the circumstances, we conclude that Ryan has shown a reasonable likelihood that the sentences in these cases were vindictive and that the resulting presumption of vindictiveness has not been overcome. The trial judge, though understandably frustrated with Ryan's erratic behavior, not only initiated plea negotiations but also expressly made plea offers, both in violation of Warner. A number of comments made by the judge—such as his warning that Ryan could get a higher sentence if he "play[ed] with" the judge and his statement that he would take it into consideration at sentencing if Ryan required the State to prove his prior convictions—suggest that the judge had departed from his role as an impartial arbiter. Indeed, the judge expressly stated that the sentence imposed would hinge on Ryan's future procedural choices. The judge made clear that he was prepared to sentence Ryan to a bottom-of-the-guidelines sentence in each case and order the sentences to run - 11 - concurrently if he entered a plea. But after proceeding to trial, the judge ultimately sentenced Ryan to harsher sentences in each case and, more significantly, ordered the sentences to run consecutively. See Rodriguez v. State, 917 So. 2d 958, 960 (Fla. 3d DCA 2005) (concluding that consecutive sentences were harsher than concurrent sentences for purposed of vindictiveness analysis). Finally, the record makes clear that the judge was well aware of Ryan's prior record before the trials began, and a review of the evidence presented at trial does not appear to explain the increased sentence. In any case, the judge did not recite any additional facts that would justify the increase. In light of these circumstances, there is an unrebutted presumption that the harsher sentences were imposed because Ryan exercised his right to trial. Accordingly, we must reverse and remand for resentencing before a different judge. See Mendez, 28 So. 3d at 951. Reversed and remanded with directions. LaROSE and SLEET, JJ., Concur. - 12 -