DENNIS KNOWLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the presumption of vindictiveness under North Carolina v. Pearce does not apply when a defendant receives a harsher sentence after a vacated plea, especially when different judges are involved and new unfavorable information is presented.
Defendant received a greater sentence after a plea of no contest was vacated due to involuntariness, compared to the earlier sentence. The earlier sen…
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PER CURIAM.
Defendant was convicted of three counts of sale of cocaine within 1,000 feet of a school and received a greater sentence than he had received under an earlier plea of no contest, which was vacated when he alleged it was not voluntary. Defendant argues that under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), it was a denial of due process for him to have been given a greater sentence after being convicted, than the earlier sentence which was vacated. We affirm.
In Pearce the United States Supreme Court held that where a defendant obtained an appellate reversal of his first conviction, and was retried and convicted again, a harsher sentence than the one the same judge had imposed for the first conviction created a “presumption of vindictiveness” which could be overcome by information in the record which would warrant a higher sentence. After Pearce, however, the Court whittled down the circumstances in which the presumption of vindictiveness would exist, which have been succinctly summarized by the Florida Supreme Court in Wemett v. State, 567 So. 2d 882 (Fla.1990).
There are several reasons why the presumption of vindictiveness does not apply in the present case. First, the judge who imposed the first sentence based on the plea was not the judge who tried the case and imposed the sentence which is the subject of this appeal. Second, the defendant did not obtain a reversal by an appellate court of the earlier conviction, but rather got a plea vacated by motion in the trial court. Third, a presentence investigation after the trial revealed unfavorable information about the defendant, which was unknown to the judge imposing the first sentence. Wemett, 567 So. 2d at 884-85.
Affirmed.
GLICKSTEIN, C.J., KLEIN, J., and WALDEN, JAMES H., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Richardson v. State, 821 So. 2d 428 (Fla. 5th DCA 2002)…n. Because he presents nothing to demonstrate that the second trial judge was vindictive in imposing a harsher sentence, he has failed to meet this burden. See Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); Knowles v. State, 617 So. 2d 1136 (Fla. 4th DCA 1993). Richardson’s resentencing was de novo. St. Lawrence v. State, 785 So. 2d 728 (Fla. 5th DCA 2001). Once the original conviction had, at Richardson’s behest, been nullified, the slate was wiped clean. Pearce 395 U.S. at 721, 89 S.…
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Alphonso Davis v. State, 268 So. 3d 147 (Fla. 4th DCA 2019)…58 (Fla. 4th DCA 2009). We have declined to apply the presumption of vindictiveness when “a different trial judge sentence[s] appellant the third time around.” Harris v. State, 653 So. 2d 402, 404 (Fla. 4th DCA 1995); see also Knowles v. State, 617 So. 2d 1136, 1137 (Fla. 4th DCA 1993) (declining to apply the presumption of vindictiveness, in part, because “the judge who imposed the first sentence . . . was not the judge who tried the case and imposed the [second] sentence. . .”). Appellant attem…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Wemett v. State, 567 So. 2d 882 (Fla. 1990)