In Mitchell v. State, 521 So. 2d 185 (Fla. 4th DCA 1988), defense counsel asked the judge about the possibility of a plea after the first witness testified at trial. See 521 So. 2d at 186. The trial judge asked about the defendant's record and questioned the defendant about his parole status, and the State offered to forgo filing for habitual offender status and seeking a departure from the guidelines if the defendant pled. See id. The defendant rejected the trial judge's offer of seven to nine years and elected to proceed with the trial. See id. The trial judge then made the following comments on the record: The offer made was based upon entry of a plea at this time and based upon the state's indication that they would not be seeking--if he entered a plea now that they would not be seeking any aggravation and not be seeking a habitual offender status. Obviously, the court's position would be--could very well be entirely different at the conclusion of the trial should appropriate motions be filed. Id. After the defendant was convicted, the trial judge imposed an upward departure sentence of twelve years, with written reasons supporting the departure. See id. The defendant appealed, arguing that the harsher sentence should be presumed vindictive. The Fourth District rejected the defendant's argument, concluding that nothing in the record supported a presumption of vindictiveness. See id. at 190. The Fourth District further found that a disparity between the sentence imposed and the earlier offer did not alone support a finding of vindictiveness, and that there were no comments on the record that on their face would support a presumption of vindictiveness. See id. In contrast to Mitchell, the facts presented in Stephney v. State, 564 So. 2d 1246 (Fla. 3d DCA 1990), led the Third District to apply the presumption of vindictiveness and vacate the defendant's sentence in that case. Stephney involved a plea offer of 364 days plus placement in a drug rehabilitation program made by the judge at the defendant's arraignment. See 564 So. 2d at 1247. The defendant rejected the plea, a jury was sworn for the trial, and the trial judge then offered the defendant three and one-half years in exchange for a guilty plea. See id. The defendant responded by asking the judge to renew its offer of 364 days. See id.