What You Need to Know About Vindictive Sentencing

Vindictive sentencing occurs when a judge imposes a harsher sentence as a form of retaliation—often in response to a defendant’s decision to reject a plea offer or exercise their right to a trial. In Florida, this practice is not only unjust, but it is also illegal. Fortunately, Florida courts have established certain tests and safeguards to protect defendants from this type of unfair treatment. The best defense against vindictive sentencing is having an experienced Tampa criminal defense attorney like Rocky Brancato of the Brancato Law Firm, P.A. in your corner.

In this blog post, we’ll explore the key principles surrounding vindictive sentencing and how you can protect yourself if you suspect it may be occurring in your case.

The Totality of the Circumstances Test

Florida courts use the “totality of the circumstances” test to assess instances of potential vindictive sentencing. This test, outlined in Wilson v. State 845 So. 2d 142 (Fla. 2003), draws on earlier rulings, including State v. Warner, 762 So. 2d 507 (Fla. 2000). In these cases, the Florida Supreme Court emphasized fairness in sentencing and established a framework for evaluating whether a harsher sentence was imposed in retaliation for a defendant’s choice to go to trial instead of accepting a plea.

Here are some factors the court will consider when evaluating your case:

Key Factors to Consider:

If you believe you’ve been subjected to vindictive sentencing, it’s important to file a timely appeal—usually within 30 days of your sentencing. On appeal, the court will review the following factors as part of the totality of the circumstances:

• Judge’s Role in Plea Negotiations: Did the judge excessively participate in the plea discussions? According to Warner, judges should not initiate plea negotiations but can participate when requested by the parties. If a judge oversteps this role, it could signal impartiality. Pay attention to the judge’s tone during these discussions, as it may give early warning signs of potential bias.

• Comments by the Judge: Did the judge make any statements implying that your sentence could depend on whether you accepted a plea or chose to go to trial? In Wilson, the court clarified that any suggestion of a harsher sentence for exercising your right to trial may indicate vindictiveness.

• Disparity Between Plea Offer and Sentence: A significant difference between the plea offer and the final sentence may indicate that the harsher sentence was motivated by your refusal to accept the plea deal.

• Absence of Explanatory Factors: If no reasonable explanation is given for the increased sentence other than your decision to go to trial, this could suggest that the court acted out of retaliation.

The Remedy for Vindictive Sentencing: Resentencing by a Different Judge

A presumption of vindictiveness arises when there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness by the judge. Cambridge v. State, 884 So. 2d 535 (Fla. 2d DCA 2004). If there is a presumption of judicial vindictiveness, the appropriate remedy is resentencing before a different judge. In Wilson v. State, the appellate court held that if a previous sentence is found to be retaliatory, it should be vacated and a new sentence should be imposed by a different judge. This helps ensure that you are not unfairly penalized due to perceived bias or retribution from the original sentencing judge.

The Best Way to Avoid a Vindictive Sentence Is to Have an Experienced Tampa Criminal Defense Attorney in Your Corner

Having a skilled criminal defense attorney can significantly reduce the risk of vindictive sentencing. Attorney Rocky Brancato of the Brancato Law Firm, P.A. has extensive experience in protecting clients from unfair sentences. Here are some of the strategies he may employ to avoid a vindictive sentence:

• Moving to Disqualify the Judge: If there are concerns about a judge’s potential bias, Attorney Rocky Brancato will not hesitate to file a motion to disqualify the judge. Rule 2.330 of the Florida Rules of General Practice and Judicial Administration allows for the disqualification of a judge based on perceived prejudice or bias. Acting early in this way can help prevent future harm to your case.

• Avoiding “Off-Record” Plea Discussions: In State v. Warner, the Florida Supreme Court stressed the importance of keeping plea negotiations on the record to avoid any perception of coercion or undue influence by the judge. While this isn’t always entirely possible, the Brancato Law Firm, P.A. ensures that all discussions with the judge are properly documented whenever possible.

• Documenting Plea Discussions for Appeal: Our firm documents all plea discussions and keeps contemporaneous records of any statements or behaviors that could raise concerns about vindictive sentencing. This helps to create a transparent record that will be crucial in challenging a sentence on appeal if necessary.

• Objecting to Vindictive Sentencing: If a judge imposes a sentence that appears vindictive, Attorney Rocky Brancato is not afraid to object on the record. Objecting immediately is vital to preserve the issue for appeal. Failing to object could waive your right to challenge the sentence later.

The Role of a Guilty Plea in Sentencing

It’s important to note that Florida law allows a judge to consider a defendant’s guilty plea as a factor when determining the sentence, as seen in Gallucci v. State, 371 So. 2d 148 (Fla. 4^th DCA 1979). However, judges cannot penalize defendants simply for exercising their right to go to trial, as this would violate the principle of fairness and due process. While some judges may impose a higher sentence if you reject a plea offer, this practice, known as the “trial tax,” is illegal and subject to challenge.

How the Brancato Law Firm, P.A. Can Help

If you suspect that vindictive sentencing is at play in your case, don’t hesitate to reach out to the Brancato Law Firm, P.A. Our experienced team, led by Tampa Attorney Rocky Brancato, is dedicated to protecting your rights and ensuring you receive fair and just treatment throughout the legal process.

We can help you challenge a vindictive sentence and ensure that you are not unfairly punished for exercising your constitutional rights. Call us today at 813-727-7159 to schedule your free consultation and learn how we can help you reclaim your life.

At the Brancato Law Firm, P.A., we are committed to fighting for your rights and standing by your side every step of the way.