Vindictiveness in Sentencing

Dear Readers:

We as attorneys have seen truly vindictiveness shown from the bench. A judge

might become so frustrated in the actions of a truly ridiculous defendant or a counsel

that might push the judge emotionally and the judge shows such actions in a vindictive

manner. I mean, we are all human. Such frustration can not help but at times show

itself. Statements might be made and at the time of sentencing actually reveal itself.

The judge just might unload on a defendant with a touch sentence.

Other judges as well as prosecutors might have a pay to play mindset. A judge

might know better yet unjustifiably punish the accused by declarations at a sentencing

that show a subtle punishment in the mind of the court. They remain quiet throughout

the trial. Later only justify the upward sentence by declarations of the defendants

disposition they declared they observed at trial or some less significant fact revealed

during the trial. In fact, no such factors or evidence was present.

Such cases can land themselves before the highest courts. They are not barred

by late appeals and may be raised at anytime. Thereupon, the reviewing court must

closely analyse the case to discern how what had transpired below. Below is that type of

case. Below in Chinchar v State, the Supreme Court did just that. It analyzed, how active

was the trial court. What did he state on the record. Did he participate in the plea

negotiations and were any statements made to declare that the defendant had in deed

been punished for exercising this Constiutional right to proceed to a trial. Here, the

Supreme Court rightfully sided with he trial court. The judge had not been actively involved. The judge had not made statements which might be held against him later. A well analyzed case, rightfully siding with justice in this case. The decision is below for

your review.

Sincerely,

/s/Jeffrey W. Wiggs, Esq.

307 N. Barrow Ave.

Tavares, FL 32778

Ph: (352) 253-0100

jwiggslaw@yahoo.com

Ph: (352) 253-0100

___________________________________________________________________________________________

51 Fla. L. Weekly D2038a

Criminal law -- Sentencing -- Vindictiveness -- Record does not establish presumption

that 25-year sentence imposed after defendant decided to proceed to trial rather than

enter a plea was vindictive -- There was no record evidence that trial court participated

in plea discussions or that court's sentencing decision was at all related to defendant's

decision not to enter plea .

BRITTANY NICHOLE CHINCHAR, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Case No. 1D2025-2349. September 30, 2026. On appeal from the Circuit Court for

Okaloosa County. Jennie Kinsey, Judge. Counsel: Jessica J. Yeary, Public Defender, and

Ross S. Haine, II, Assistant Public Defender, Tallahassee, for Appellant. James Uthmeier,

Attorney General, and David Welch, Tallahassee, for Appellee.

(LONG, J.) Appellant, Brittany Chinchar, challenges her conviction and sentence for

possession of fentanyl and trafficking in methamphetamine. She argues that the trial

court erred in denying her motion for judgment of acquittal and that her twenty-fiveyear prison sentence was the product of judicial vindictiveness. We affirm the denial of

acquittal without further discussion, and we write to address the judicial vindictiveness

issue.

“[I]mposition of a vindictive sentence is fundamental error that may be raised for the

first time on appeal.” Baxter v. State, 127 So. 3d 726, 732 (Fla. 1st DCA 2013) (quoting

Mendez v. State, 28 So. 3d 948, 950 (Fla. 2d DCA 2010)). A vindictive sentence is one

that was “imposed in retaliation for the defendant not pleading guilty and instead

exercising his or her right to proceed to trial.” Id. at 733 (quoting Wilson v. State, 845 So.

2d 142, 156 (Fla. 2003)).

The Florida Supreme Court has laid out four factors that an appellate court should

consider in determining whether a presumption that a sentence is vindictive exists: (1)

whether the trial court initiated the plea discussions; (2) whether the trial court, through

its comments on the record, appears to have departed from its role as an impartial

arbiter by urging the defendant to accept a plea or by indicating that the sentence

imposed would hinge on whether the defendant accepted a plea; (3) the disparity

between the plea offer and the ultimate sentence imposed; and (4) the lack of any

record facts that explain the reason for the increased sentence other than that the

defendant exercised her right to a trial or hearing. See Wilson, 845 So. 2d at 156. Once a

presumption of judicial vindictiveness has been established, the burden shifts to the

State to produce “affirmative evidence on the record to dispel the presumption.” Id.

Here, the record does not establish a presumption of judicial vindictiveness. There is no

record evidence that the trial court ever participated in the plea discussions in this case.

There is nothing in this record which suggests that the trial court's sentencing decision

was at all related to Chinchar's decision not to take a plea. Chinchar has, therefore, failed

to establish a presumption of vindictiveness.

AFFIRMED. (KELSEY and TREADWELL, JJ., concur.)

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