Davis v. State

126 So. 3d 357, 2013 WL 1979919, 2013 Fla. App. LEXIS 7812
Procedural entryThis page is a short order in Davis v. State. Read the opinion of the Court — 2010 Fla. App. LEXIS 8943
District Court of Appeal of Florida·Decided May 15, 2013·No. No. 3D10-206·Published

Opinions

LAGOA, J.

Phillip Davis (“Davis”) appeals his judgment of conviction and sentence. Davis raises several issues on appeal regarding his conviction and sentence. We affirm as to both the conviction and sentence, but write to address the issue of vindictive sentencing raised by Davis. For the reasons set forth below, we find no merit to Davis’s argument and affirm.

[358]*358I. FACTUAL AND PROCEDURAL HISTORY

Davis was charged with one count each of organized fraud, aggravated white-collar crime, and third-degree grand theft; two counts of second-degree grand theft; and twenty-five counts of money laundering. Prior to the commencement of trial, the trial court inquired about the status of plea negotiations between the State and Davis. The following exchange occurred between the trial court, counsel and Davis:

[STATE]: Judge the State has offered a plea to a single count of aggravated white collar crime, which is count two of the information. First degree felony, level nine open to the Court. The guidelines on that would score out to bottom of 48 month and on top of 30 years.
[DEFENSE COUNSEL]: And Judge, that’s the first I’ve heard of this plea offer.
THE COURT: Okay.
[DEFENSE COUNSEL]: The plea that was given to me before was, basically, an open plea to the Court. There was no discussion or reference by the State to nolle prose [sic] of any particular counts.
THE COURT: All right. Well now you know. Mr. Davis’s plea offer was four years to 30 years with a plea straight up or open to the Court with no promises. All I say to that is, thank you.
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THE COURT: Okay.... So why don’t you speak to your client[ ] about that plea. I don’t know anything about the case, so I would have to hear extensively from the lawyers before impose [sic] a sentence.
[DEFENSE COUNSEL]: Judge, I—
THE COURT: But they would know that the bottom is four years.
[DEFENSE COUNSEL]: Judge, I can tell you this, at least from my discussions with Mr. Davis, he’s not interested in any pleas that would have the bottom of the guidelines of state imprisonment. We had discussed in generalities based upon what the State had told me before.
THE COURT: All right. So let me just colloquy him on that.
Mr. Davis, raise your right hand, please. (Thereupon, Mr. Phil Davis was duly sworn and testified under oath as follows:)
THE COURT: Okay. You’ve heard the number, you heard the plea. The State’s new plea offer this morning in essence, a guideline plea straight up to the Court with the possibility of a sentence four years to 30 years. Are you interested in pleading guilty within that — knowing that your sentencing would be anywhere between that range?
[THE DEFENDANT]: It could be 30 years.
THE COURT: Okay.
[THE DEFENDANT]: Could be as high as 30 years or as low as four years.
THE COURT: That’s right.
[THE DEFENDANT]: Straight up to the Court. No, ma’am.
THE COURT: Okay.
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THE COURT: Well, let me ask you this. Would ... you take four? Bottom of the guidelines?
[THE DEFENDANT]: No, Your Hon- or.
THE COURT: All right. Because I consider four right now. Okay. So I don’t know anything about the case, but it is a guideline in the sentence, so all right. Very well.

The trial court then proceeded to try the case. The jury convicted Davis of one count of organized scheme to defraud $50,000 or more, one count of aggravated [359]*359white-collar crime, two counts of grand theft of more than $20,000 but less than $100,000, and five counts of money laundering. At sentencing, the State recommended to the trial court a sentence of twenty years imprisonment. Davis’s counsel asked that the trial court sentence Davis to probation, not to exceed fifteen years, with one year of community control. After hearing from various family members and other character witnesses who appeared on behalf of Davis and reviewing the pre-sentence investigation reports, the trial court imposed a sentence of twenty years in state prison, followed by ten years of probation, for which restitution was ordered as a special condition in the amount of $82,825.30. This appeal ensued.

II. ANALYSIS

Davis argues that the sentence imposed on him was vindictive. He contends that a presumption of vindictiveness arose in this case because of the trial court’s plea discussion with him, and because of the great disparity between the plea offer and the twenty-year sentence eventually imposed.

The Supreme Court of Florida addressed the issue of judicial plea bargaining and vindictiveness in State v. Warner, 762 So.2d 507 (Fla.2000). In Warner, the court refused to proscribe judicial participation in the plea bargaining process, fashioning instead several restrictions designed to limit judicial involvement so as “to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice.” Id. at 513. To this end, the court stated that trial courts must not initiate plea dialogues. Id. However, they may, at their discretion, participate in such discussions upon the request of a party. Id.

Once involved, Warner states that “the trial court may actively discuss potential sentences and comment on proposed plea agreements!, and] [t]he 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. at 514. “The question for the court’s consideration is: ‘Knowing what you know today, what do you think the sentence would be if the defendant pled guilty, as charged?’” Id. To further avoid the potential for coercion, the court also stated that “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,” and required that a record be made of all plea discussions involving the court. Id.

The Supreme Court of Florida addressed the issue of vindictiveness again in Wilson v. State, 845 So.2d 142 (Fla.2003). In Wilson, the court stated that Warner did not mandate a presumption of vindictiveness in all cases where a higher sentence was imposed after the judge had participated in the plea discussions. Id. at 152. Rather, the court concluded that “a totality of the circumstances review [was] the more appropriate analysis to employ to determine 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.” Id. at 156. The court explained that:

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Davis v. State, 126 So. 3d 357, 2013 WL 1979919, 2013 Fla. App. LEXIS 7812 (Fla. Ct. App. 2013).

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