ERNESTO CARBALLO,
v.
THE STATE OF FLORIDA,
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Ernesto Carballo appeals his concurrent sentences for four criminal mischief convictions, arguing they were vindictively imposed. The Florida District Court of Appeal affirmed the sentences, finding no presumption of vindictiveness and no proof of actual vindictiveness by the defendant.
The sentences are not vindictive. Under the totality of circumstances, no presumption of vindictiveness arises, and Carballo failed to prove actual vindictiveness.
[1] A presumption of vindictiveness in sentencing arises only when the totality of circumstances suggests judicial retaliation for a defendant's exercise of a legal right.
[2] When a presumption of vindictiveness in sentencing does not arise, the burden remains on the defendant to prove actual vindictiveness.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The record before us does not support a presumption of vindictiveness when assessed under Williams and Wilson.”
The court's primary holding that no presumption of vindictive sentencing arose from the totality of circumstances.
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Join FLexlaw to unlock all legal intelligenceCarballo admitted to throwing nails around neighborhoods in Coral Gables over six weeks because he felt disrespected and bad. Some incidents were vide…
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PER CURIAM.
Ernesto Carballo appeals his sentences following his conviction on four charges of criminal mischief. We affirm. As to guilt and the nature of the offenses, Carballo admitted to a detective that he threw nails all around neighborhoods in Coral Gables over a period of six weeks because he felt disrespected and bad. Some of these incidents were videotaped by residents in the affected neighborhoods. Prior to trial, Carballo rejected two plea offers: (1) pretrial intervention with restitution of $3,237.37 (computed based on damage to numerous tires belonging to residents’ vehicles), and (2) probation with the condition of 100 hours of community service.
The jury returned guilty verdicts on a first-degree misdemeanor and three second-degree misdemeanors. The trial court sentenced Carballo to 60 days of jail time for each of the second-degree misdemeanors and 364 days of jail time for the first-degree misdemeanor, with all four sentences to be served concurrently.
Carballo’s appeal contends that those sentences are vindictive. We review the issue de novo. See Williams v. State, 225 So. 3d 349, 353 (Fla. 3d DCA 2017). We apply the factors enunciated by the Florida Supreme Court in Wilson v. State, 845 So. 2d 142 (Fla. 2003), to determine whether the totality of circumstances gives rise to a presumption of vindictiveness. The record before us does not support a presumption of vindictiveness when assessed under Williams and Wilson. See also
Concepcion v. State, 188 So. 3d 5, 9 (Fla. 3d DCA 2016) (If the totality of circumstances does not give rise to a presumption of vindictiveness, the burden of proof never shifts to the State and the defendant must satisfy his or her burden to prove actual vindictiveness).
Carballo has not carried his burden to prove actual vindictiveness, and the sentences are thus affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Williams v. State, 225 So. 3d 349 (Fla. 3d DCA 2017)
- Hernan Concepcion v. State, 188 So. 3d 5 (Fla. 3d DCA 2016)