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Longley v. State6/3/2005
ease in sentence.
In McRoy v. State , 834 So. 2d 275 (Fla. 5th DCA 2002), a case decided before Wilson, this court reversed the defendant's sentence because the trial judge had exceeded the bounds of permissible judicial participation in the plea negotiations. In that case, the prosecutor offered McRoy a three-year prison sentence in exchange for a guilty or no contest plea. The judge modified the offer made by the prosecutor to include a lengthy term of probation to follow McRoy's prison sentence. McRoy did not accept the plea offer and was sentenced after trial to fifteen years in prison. After reviewing the record of the plea negotiations, this court concluded the judge had advocated the plea offer far too strongly and exceeded the bounds of what Warner found to be the judge's "neutral and impartial role" in the plea bargaining process.
In a more recent case decided after Wilson, Davis v. State, 860 So. 2d 1058 (Fla. 5th DCA 2003), this court concluded that Davis' due process rights had been violated based on a consideration of the "totality of the circumstances" relating to the plea offer and sentence. In that case, Davis declined the court's offer of 4 1/2 years in prison and was later sentenced to 15 years. After reviewing the record, this court reversed for a new sentencing hearing before a different trial judge, explaining as follows:
It is clear that the 15 year sentence imposed is far greater than the 4 1/2 year plea offer. We note that the trial judge appears to have initiated the original plea discussion because the parties refer to the offer as emanating from the judge, and the judge personally withdrew the offer after it was not accepted. It appears, as well, that the judge was threatening a far harsher sentence should the defendant exercise his right to a jury trial and be convicted. Finally, the comments of the judge in justification of the increased sentence do not convince us that the sentence was imposed free of the underlying threat to punish the defendant for going to trial. 860 So. 2d at 1060.
This court acknowledged the new judge may well determine that fifteen years in prison is a fair sentence for Davis, given the circumstances of the crime, his criminal history, and other factors normally considered during sentencing. However, without a new sentencing, this court could not be assured that Davis has been accorded his due process rights.
As in McRoy and Davis, Longley's right to due process in this case was violated. Not only did Judge Kaney initiate the plea negotiations but he conducted them at an unrecorded conference, thus making review impossible. The sentence imposed was five times greater than the sentence offered to Longley and was even greater than the sentence requested by the state. Judge Kaney did not place the reasons for the harsher sentence on the record - the only possible basis for the increase being two drug offenses that were more than ten years old.
To assure that Longley has been accorded due process, we remand this cause for a new revocation hearing before a judge other than Judge Kaney or Judge Johnson. See Wilson (remedy for vindictive sentencing is resentencing before a different judge). Judge Kaney may not preside over the new revocation hearing for obvious reasons. Judge Johnson also denied Longley's motion to modify sentence, thus tacitly approving Judge's Kaney's vindictive sentence, and thus he may not preside over the revocation proceeding as well.
REVERSED and REMANDED.
GRIFFIN and PALMER, JJ., concur.
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