Review of the Transcription Led to the Conclusion That the Trial Judge's Comments Supported Presumption of Vindictiveness

In Prado v. State, 816 So. 2d 1155 (Fla. 3d DCA 2002), prior to the start of a second trial, the trial judge "initiated a lengthy exchange with Prado regarding the benefits of accepting the state's four-year prison plea offer, in lieu of proceeding to trial." 816 So. 2d at 1156. Prado rejected the State's offer, was found guilty by the jury and was sentenced to forty years in prison. See id. The Third District reviewed the transcript, noted that the sentence imposed was a tenfold increase from the plea offer, and concluded that the trial judge's comments on their face supported a presumption of vindictiveness. See id. at 1157. Judge Sorondo's concurring opinion contains a lengthy recitation from the pertinent parts of the trial transcript. See Prado, 816 So. 2d at 1159-62 (Sorondo, J. concurring). At one point during the discussion of the State's plea offer, Prado stated that he did not believe the trial judge could sentence him to forty years if he was found guilty. See id. at 1160. The judge replied: "Don't be so sure." Id. A few moments later the trial judge stated: "If you feel you're a gambler and a player and want to take a chance, knock yourself out. We'll give you a trial. and once the dice are thrown--." Id. After trial, during the sentencing proceeding, the trial judge reiterated that Prado made a mistake by choosing to proceed to trial: Going to trial is something that we do here but the consequences, of course, are if you lose, you might lose big. In this particular case the defendant made an enlightened choice that was not a particularly good one. He turned down the fairly reasonable plea. . . . And, he made another life choice when he said to me you will not give me 40 years in state prison. He was wrong about going to trial; he was wrong about that sentence because that's exactly what he's going to get. Id. at 1162.