02-3083 DOMINGUEZ V. THE STATE

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 02-3083 DOMINGUEZ V. THE STATE

Case Date: 12/31/2003

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D., 2003 RICARDO DOMINGUEZ, Appellant, vs. THE STATE OF FLORIDA, Appellee. ** ** ** ** ** CASE NO. 3D02-3083 LOWER TRIBUNAL NO. 01-10485

An Appeal from the Circuit Court for Miami-Dade County, Scott Silverman, Judge. Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant. Charles J. Crist, Jr., Attorney General, and Ingrassia, Assistant Attorney General, for appellee. Frank J.

Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ. PER CURIAM. The defendant appeals his conviction and sentence for

aggravated assault. sentence.

We affirm the conviction but reverse the

The defendant was charged with two counts of aggravated assault and one count of resisting arrest. At the time of his

arrest, he was on probation and was subsequently charged with violating it. At the start of his probation violation hearing, the trial court inquired if there was a plea offer. The prosecutor

responded that the offer was 39.52 months as an habitual felony offender which would resolve both cases. The defendant turned down the plea offer. The trial court sentenced the defendant to five years for violation of his probation. The trial court then questioned the

defendant to see whether it could dispose of the substantive case. The trial court informed the defendant that the minimum guideline sentence was 4.41 years. It appears the trial court was willing to offer the defendant a sentence of 4.41 years to run concurrent with his probation violation sentence, if he pled guilty. The defendant again turned down the plea offer. Prior to trial, one of the

counts for aggravated assault was nolle prossed when one of the alleged victims could not be found for trial. The case proceeded to trial, and the jury convicted the defendant of one count of aggravated assault but acquitted him of the count of resisting an officer. The trial court sentenced the

defendant to seventeen years in prison as an habitual felony offender followed by five years of probation. seventeen-year sentence was vindictive. In Wilson v. State, 845 So. 2d 142 (Fla. 2003), the Supreme Court held that district courts should employ a totality of the 2 We agree that the

circumstances

review

when

determining

"whether

a

defendant's

constitutional right to due process of law was violated by the imposition of an increased sentence after unsuccessful plea

discussions in which the trial judge participated." So. 2d at 156.

Wilson, 845

The Supreme Court outlined several factors that

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. These factors include: judicial participation in plea negotiations followed by a harsher sentence; the trial court's initiation of the plea discussions; an appearance of the trial court's departure from his role as an impartial arbiter; the disparity between the plea offer and the ultimate sentence imposed; and the lack of any facts on the record that explain the reason for the increased sentence other than the defendant exercising his or her right to trial. Wilson, 845 So. 2d at 156. Several of these factors are present in this case. The trial

court participated in plea negotiations and offered the defendant a plea of 4.41 years prior to trial. One of the counts was nolle

prossed prior to trial and the jury acquitted the defendant of a second count, yet the trial court imposed a seventeen-year

sentence.

The reasons for the disparity between the state's

original 39.53 month plea offer, the court's subsequent 4.41 year offer and the seventeen-year sentence imposed by the court are not 3

apparent from the record. Under the totality of the circumstances, there is a reasonable likelihood that the harsher sentence was imposed in retaliation for the defendant exercising his right to proceed to trial. See Blanco v. State, 849 So. 2d 381 (Fla. 3d DCA 2003). judge. Accordingly, we reverse and remand for further proceedings consistent with this opinion. The defendant is entitled to be resentenced by a different

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