MICHAEL W. GAITHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Gaither appeals his convictions for capital sexual battery and lewd and lascivious acts following a retrial. The court affirms the convictions but remands for resentencing on the noncapital felonies because the trial court imposed harsher consecutive sentences without justification and without using the required sentencing guidelines scoresheet.
The convictions are affirmed, but the sentences on the two noncapital offenses are vacated and remanded for resentencing. The trial court may not impose a harsher sentence without affirmative record evidence of justification, failed to use a required guidelines scoresheet, and may not depart from the guidelines upon remand.
[1] A judge may not impose a harsher sentence after a new trial unless the record affirmatively shows justification resulting from the defendant's conduct after the original…
[2] A trial court errs by failing to utilize a sentencing scoresheet when imposing sentences on noncapital felonies.
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Join FLexlaw to unlock all legal intelligence“a judge may not impose a harsher sentence upon a defendant after a new trial unless the record affirmatively shows some justification resulting from the defendant's conduct after the original sentencing”
Establishes the constitutional standard from North Carolina v. Pearce that governs sentencing after retrial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGaither was convicted after a retrial (the original convictions having been reversed by the appellate court). At the initial sentencing, the trial cou…
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PER CURIAM.
Michael W. Gaither appeals his convictions for three counts of capital sexual battery and two counts of lewd and lascivious acts and the sentences imposed on the noncapital felonies. We affirm the convictions but remand for resentencing on the two noncapital offenses.
This appeal is on the retrial of Gaither after this court reversed all convictions and remanded for a new trial. See Gaither v. State, 581 So. 2d 922 (Fla. 2d DCA 1991). At the initial sentencing, the trial court imposed sentences of five and one-half years, which fell within the guidelines’ recommended range, on the two charges of lewd and lascivious acts. At sentencing following the second trial, the trial court, without the benefit of a guidelines’ score-sheet, sentenced Gaither to consecutive fifteen-year prison terms on each of the non-capital felonies, which was the statutory maximum and an apparent upward departure from the guidelines. The trial court, however, did not list any reasons for departure or justification for exceeding the sentences imposed originally.
The United States Supreme Court has held that a judge may not impose a harsher sentence upon a defendant after a new trial unless the record affirmatively shows some justification resulting from the defendant’s conduct after the original sentencing. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This record is devoid of evidence that Gaither’s conduct after the original sentencing supported an increased sentence. Further, it was error for the trial court to fail to utilize a scoresheet in sentencing Gaither on the noncapital felonies. See Lamb v. State, 532 So. 2d 1051 (Fla. 1988); Taylor v. State, 563 So. 2d 822 (Fla. 2d DCA 1990). We, therefore, vacate the two sentences on the lewd and lascivious acts convictions. Upon remand for resentencing on those two counts, the trial court may not depart from the guidelines. See Taylor v. State, 586 So. 2d 1345 (Fla. 2d DCA 1991).
We affirm all convictions and the sentences on the capital felonies but vacate the two sentences for lewd and lascivious acts and remand for resentencing within the sentencing guidelines.
FRANK, A.C.J., and PARKER and ALTENBERND, JJ., concur. ¡O I KEY NUMBER SYSTEM^
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Citator
Cited By
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Rodriguez v. State, 917 So. 2d 958 (Fla. 3d DCA 2005)…l sentencing goal of concurrent sentences. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Everett v. State, 824 So. 2d 211 (Fla. 1st DCA 2002); Kopko v. State, 709 So. 2d 159 (Fla. 5th DCA 1998); Gaither v. State, 614 So. 2d 29 (Fla. 2d DCA 1993); Alfonso v. State, 561 So. 2d 1207 (Fla. 3d DCA 1990), review denied, 576 So. 2d 284 (Fla.1990); see also Blackshear v. State, 531 So. 2d 956 (Fla.1988); Herring v. State, 411 So. 2d 966 (Fla. 3d DCA 1982). Thus, the order on revi…
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Johnson v. State, 664 So. 2d 1112 (Fla. 2d DCA 1995)…entencing the defendant for the lewd and las [*1113] civious conviction, the case must be remanded for resentencing on that count. See Lamb v. State, 532 So. 2d 1051 (Fla.1988); Salazar v. State, 662 So. 2d 1294 (Fla. 2d DCA 1995); Gaither v. State, 614 So. 2d 29 (Fla. 2d DCA 1998). DANAHY, A.C.J., and PARKER and FULMER, JJ., concur.…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Lamb v. State, 532 So. 2d 1051 (Fla. 1988)
- Taylor v. State, 563 So. 2d 822 (Fla. 2d DCA 1990)
- Gaither v. State, 581 So. 2d 922 (Fla. 2d DCA 1991)
- Taylor v. State, 586 So. 2d 1345 (Fla. 2d DCA 1991)
- Reeves v. Reeves, 586 So. 2d 1345 (Fla. 1st DCA 1991)