MANUEL ALVAREZ-HERNANDEZ,

v.

THE STATE OF FLORIDA,

Third District Court of Appeal State of Florida

Opinion filed March 24, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-302 Lower Tribunal No. F17-10378 ________________

Manuel Alvarez-Hernandez, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Tanya Brinkley, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for appellee.

Before EMAS, C.J., and LINDSEY and BOKOR, JJ.

EMAS, C.J.

2

INTRODUCTION

Manuel Alvarez-Hernandez, the defendant below, appeals his sentence of twenty-five years in prison, followed by ten years’ reporting probation. The sole issue raised on appeal is whether the imposed sentence was vindictive. Alvarez-Hernandez contends that the sentence is presumptively vindictive, and that because the State has failed to rebut this presumption, we are required to reverse and remand for a new sentencing proceeding before a different judge. We do not agree and, for the reasons that follow, affirm the sentence.

FACTS AND BACKGROUND

The relevant facts, which do not appear to be in dispute, are as follows: In June 2017, Alvarez-Hernandez was charged with attempted second-degree murder with a deadly weapon (a first-degree felony); aggravated battery with great bodily harm or with a deadly weapon (a firstdegree felony); and aggravated assault with a deadly weapon (a third-degree felony). The case proceeded to trial in October 2019. Judge Tanya Brinkley presided over the trial and the subsequent sentencing. However, a month prior to the trial, a pretrial conference was held, at which time Judge Brinkley (who had only recently been assigned to the case) asked about prior plea

DISCUSSION AND ANALYSIS

Our standard of review is de novo. Williams v. State, 225 So. 3d 349, 353 (Fla. 3d DCA 2017) (reiterating that “the issue of whether a defendant’s sentence is vindictive is a question of law subject to de novo review”). As this court noted in Williams: When a claim of vindictive sentencing is raised, the reviewing court must examine all of the surrounding circumstances of a rejected plea and the sentence imposed to determine whether they create a presumption of vindictiveness. If the totality of the circumstances give rise to a presumption of vindictiveness, then the burden shifts to the State to produce evidence to dispel the presumption. However, if the totality of the circumstances do not give rise to a presumption of vindictiveness, the burden never shifts to the State and the defendant must satisfy his burden to prove actual vindictiveness.

Id. at 356 (quoting Concepcion v. State, 188 So. 3d 5, 9 (Fla. 3d DCA 2016)). In determining whether the totality of the circumstances gives rise to a presumption of vindictiveness, judicial participation in plea negotiations, followed by a harsher sentence, is a circumstance to be considered. Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003). Other factors include, but are not limited to:

5 (1) whether the trial judge initiated the plea discussions with the defendant . . . ; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or 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 the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. Even if we were to find that “the trial judge initiated the plea discussions with the defendant”—a dubious proposition where, as here: the newlyassigned successor judge, who had not been involved in any plea discussions, inquired about any prior plea offers; the State and defense recited the history of plea offers predating her assignment to the case1; the State then followed up the recitation with an offer of its own to the defendant; the defendant rejected the State’s offer, following which the successor judge asked if there was any objection to “re-extending” the offer made earlier by the predecessor judge—we conclude that the totality of the circumstances,

1 See Rosado v. State, 129 So. 3d 1104 (Fla. 5th DCA 2013) (no presumption of vindictiveness where judge inquired as to whether any plea offers had been extended); Vondervor v. State, 847 So. 2d 610 (Fla. 5th DCA 2003) (no Warner violation if judge asks attorneys whether a plea offer has been extended).

Further, the record reveals she extended the offer in a neutral, nonadvocating manner, merely advising the defendant this would be the last plea offer extended to him and that if he rejected it, the case would proceed to trial. Nor did Judge Brinkley urge Alvarez-Hernandez to accept the plea offer by implying or stating that any sentence imposed would hinge on future procedural choices such as proceeding to trial. Finally, while there is a significant disparity between the plea offer and the ultimate sentence imposed, Judge Brinkley placed on the record, during the sentencing hearing, an explanation of the testimony and other evidence

Wilson, 845 So. 2d 157 (quoting Prado v. State, 816 So. 2d 1155, 1164 (Fla. 3d DCA 2002) (Sorondo, J., concurring).

CONCLUSION

“The right to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole . . . .”; and

“The right to confer with the prosecuting attorney concerning any plea agreements, participation in pretrial diversion programs, release, restitution, sentencing, or any other disposition of the case.”

Art. I, § 16(b)(6)a.-c., Fla. Const. (2020). Affirmed.