Viera v. State , 35 So. 3d 1005 ( 2010 )

35 So.3d 1005 (2010)

Nelson VIERA, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D07-3300.

District Court of Appeal of Florida, Third District.

May 26, 2010.

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

This is an appeal from a conviction and a 40 year sentence for trafficking in heroin. We find no trial error and therefore affirm the conviction. However, after consideration of the circumstances surrounding the sentence in light of the factors stated in Wilson v. State, 845 So.2d 142, 156 (Fla. 2003), particularly the judge's enthusiastic advocacy of the State's pre-trial offer of a ten year sentence in return for a guilty plea, and the unexplained 40 year sentence (the offense carried a 25 year mandatory minimum) which was imposed after the trial which followed the defendant's rejection of the offer, we must conclude that the sentence was, in legal parlance, "vindictive," requiring resentencing by another judge. See Brandful v. State, 858 So.2d 367 (Fla. 3d DCA 2003); Compare Ducksworth v. State, 26 So.3d 74 (Fla. 3d DCA 2010).

Affirmed in part, vacated in part, and remanded.