In an opinion released on June 29, 2011, the Fourth DCA reversed a sentence which the Court found to be the product of judicial vindictiveness. In Jerome Vardaman v. State, 4D08-2603, the Court reversed two 30 year sentences imposed by Circuit Judge Cynthia Imperato of the Seventeenth Judicial Circuit. In 2002, Vardaman pled to carjacking with a firearm, robbery with a firearm, and resisting arrest without violence, and was sentenced as a Youthful Offender to a combination of prison, community control, and probation. In 2008, Vardaman was arrested on new drug charges. During the violation of probation proceedings, Judge Imperato initiated plea discussions with Vardaman. He rejected the Judge’s initial offer of 8 years’ incarceration on Counts I and II, concurrent, with credit for four years, and proceeded to final hearing. After being found guilty of the violation, Judge Imperato sentenced Vardaman to concurrent 30 year terms.
In its analysis, the Court cited Mounds v. State, 849 So. 2d 1170, 1171 (Fla. 4th DCA 2003) and Wilson v. State, 845 So. 2d 142 (Fla. 2003) for the proposition that where there is judicial participation in plea negotiations, followed by a harsher sentence, a totality of the circumstances approach must be used to determine if the sentence is the product of vindictiveness. If the defendant demonstrates vindictiveness, the burden shifts to the State to rebut the showing. The Court also recalled that other factors to consider include (1) whether the trial judge initiated the plea discussions in violation of State v. Warner, 762 So. 2d 507, 513 (Fla. 2000); (2) whether the judge, through comments on the record, appeared to have departed from the role of impartial arbiter by either urging the defendant to accept the plea, or by 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 ultimate sentence imposed; and, (4) any lack of facts on the record to explain the reason for the increased sentence. Because Vardaman established each of the foregoing factors, the Fourth DCA reversed his sentence and remanded the matter for resentencing before a different Judge.
The lesson criminal attorneys can take from this case is obvious: be cautious when the trial judge participates in plea negotiations. If the ultimate sentence imposed is more harsh than what was initially offered, and if the above factors are present, there may be a good basis to appeal the sentence based on judicial vindictiveness.