JOHNNY JAY JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny Jay Jones appealed sentences imposed for crimes committed in 1982 and 1986. The court held that the increased sentence on resentencing was not presumptively vindictive under North Carolina v. Pearce because there was no evidence of improper motive, but reversed and remanded for credit for time already served on probation.
The increased sentence is not presumptively vindictive absent evidence of improper motive or reasonable suspicion thereof. Jones is entitled to credit for the approximately three years already spent on probation, requiring reversal and remand for correction of the 1982 sentence. The 1986 sentence is affirmed.
[1] A presumption of vindictiveness in sentencing, arising from a harsher sentence after a successful appeal, is rebutted absent proof of improper motive or sound reason to s…
[2] A defendant is entitled to credit for time spent on probation when a sentence is corrected following a resentencing.
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Join FLexlaw to unlock all legal intelligence“Absent proof of an improper motive — or some sound reason to suspect the existence of one — no reasonable apprehension of vindictiveness can flourish.”
Establishes the standard for presumptive vindictiveness under Pearce; mere increase in sentence alone is insufficient without evidence of improper motive
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Join FLexlaw to unlock all legal intelligenceIn 1982, Jones was initially sentenced to 12 years probation. Jones appealed this sentence while unrepresented at the sentencing hearing. The trial co…
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SANDERS, E.P.B., Associate Judge.
The defendant appeals sentences he received for crimes committed in 1982 and 1986.
In the 1982 case, the defendant was sentenced to 12 years probation but appealed because he was unrepresented at the sentencing hearing. The trial court then resentenced the defendant, this time to 15 years probation. On appeal, the defendant contends that, because this sentence exceeded his prior sentence, it is presumptively vindictive pursuant to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We disagree.
In Wood v. State, 582 So. 2d 751 (Fla. 5th DCA 1991), this court recognized that the presumption recognized in Pearce arises only where there is a reasonable likelihood of vindictiveness on the trial court’s part. “Absent proof of an improper motive — or some sound reason to suspect the existence of one — no reasonable apprehension of vindictiveness can flourish.” Wood at 581-82 (quoting United States v. Pimienta-Redondo, 874 F. 2d 9, 12-14 (1st Cir.), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989)). Because we find no evidence of vindictiveness whatsoever, we hold that the sentence is valid. We do, however, recognize that the defendant is entitled to credit for the approximately three years he has already spent on probation. See Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992); Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991). Therefore, we reverse and remand for correction of defendant’s sentence to reflect this credit.
We find the defendant’s second point on appeal regarding the 1986 case to be without merit and therefore affirm the defendant’s sentence in that case.
REVERSED and REMANDED in part; AFFIRMED in part.
COBB and W. SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hennessey v. State, 795 So. 2d 1126 (Fla. 5th DCA 2001)…r sentence upon resentencing, as long as judicial vindictiveness plays no part in resentencing), review denied, 576 So. 2d 291 (Fla.1991), disapproved in part on other grounds, State v. Washington, 594 So. 2d 291 (Fla.1992); see also Jones v. State, 617 So. 2d 743 (Fla. 5th DCA 1993) (absent proof of an improper motive or some sound reason to suspect the existence of one, no reasonable apprehension of vindictiveness). We therefore remand to the trial court to either correct its original sentence to reflect i…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991)
- Ogden v. State, 605 So. 2d 155 (Fla. 5th DCA 1992)
- United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir. 1989)
- Wood v. State, 582 So. 2d 751 (Fla. 5th DCA 1991)
- Camen v. Safeco Ins. Co. of Am., 493 U.S. 890 (U.S. 1989)
- Turk v. United States, 493 U.S. 890 (U.S. 1989)