ROLAND EVERETT GRAHAM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Graham challenges increased sentences imposed after his original habitual felony offender sentences were vacated and a new judge resentenced him under the guidelines. The court holds that the North Carolina v. Pearce presumption of vindictiveness does not apply because a different judge imposed the new sentence, and Graham failed to prove actual vindictiveness, but reverses the attempted armed robbery sentences as exceeding statutory maximums.
The Pearce presumption of vindictiveness does not apply when a different judge imposes the second sentence, and Graham failed to prove actual vindictiveness. However, the attempted armed robbery sentences exceeded the statutory maximum for second degree felonies and must be reversed and remanded for resentencing.
[1] A presumption of vindictiveness, requiring reversal of a resentence, applies only when the same trial judge imposes a harsher sentence after a defendant successfully atta…
[2] When no presumption of vindictiveness applies, a defendant bears the burden of proving actual vindictiveness in the imposition of a harsher sentence.
Previewing 2 of 5 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“Pearce requires reversal only if a defendant establishes that his new guidelines sentence is more severe than his original habitualized sentence and that the more severe sentence was imposed for a vindictive purpose.”
Establishes the two-part test for Pearce violations that applies to all resentencing cases.
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Join FLexlaw to unlock all legal intelligenceGraham received five concurrent habitual felony offender sentences of 25 years imprisonment. After he obtained postconviction relief and the sentences…
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FULMER, Judge.
In this criminal appeal, Roland Graham challenges the five concurrent guidelines sentences of 40 years’ imprisonment imposed after the trial court granted his motion for postconviction relief and vacated the five concurrent habitual felony offender sentences of 25 years’ imprisonment earlier imposed. Graham cites North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), in support of his contention that the trial court improperly increased his sentence after his original sentence was vacated. Pearce requires reversal only if a defendant establishes that his new guidelines sentence is more severe than his original habitualized sentence and that the more severe sentence was imposed for a vindictive purpose. Pearce also provides for a presumption of vindictiveness when the same trial judge imposes a harsher sentence after the defendant successfully attacks the original sentence. 395 U.S. at 726, 89 S.Ct. at 2081. Here, the second sentence was not imposed by the same judge who imposed the original sentence. Therefore, Graham’s reliance on the Pearce presumption of vindictiveness as grounds for reversal is misplaced.
In cases where no presumption applies, the defendant has the burden of proving actual vindictiveness. Wemett v. State, 567 So. 2d 882 (Fla.1990); Thomas v. State, 638 So. 2d 169 (Fla. 1st DCA 1994). Graham neither alleged nor proved that the second trial judge was vindictive in imposing the harsher sentence and our review of the transcript reveals no trace of vindictiveness. Furthermore, we are not prepared to acknowledge that the second sentence is, in fact, more harsh than the first. In light of the statutory provisions for awarding gain time in habitual verses nonhabitual sentences and the potential for forfeiture of gain time; there can be no definitive answer as to which of the sentences is more severe in this case. See §§ 944.275(4), (5), 775.084(4)(e), Fla.Stat. (1993).
We do agree with the defendant, and the state concedes, that the sentences imposed for his attempted armed robbery convictions are beyond the statutory maximum for a second degree felony. See §§ 775.082(3)(c), 777.04(4)(d), 812.13(2)(a), Fla.Stat. (1993); Stocker v. State, 617 So. 2d 789 (Fla. 1st DCA 1993).
Accordingly, we affirm the sentences for the two counts of attempted murder, but reverse and remand for resentencing on the attempted armed robbery counts.
Reversed and remanded.
THREADGILL, C.J., and LAZZARA, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Holland v. State, 916 So. 2d 750 (Fla. 2005)…ed the sentences). In cases like Holland’s where the judge presiding over the retrial was not the same judge who presided over the original trial, the defendant bears the burden of proving the court acted with actual vindictiveness. Graham v. State, 681 So. 2d 1178 (Fla. 2d DCA 1996). Holland has failed to make the requisite showing of vindictiveness. For these reasons, we find that Holland’s fourth claim is also without merit. CONCLUSION For the reasons stated above, we affirm the lower court’s denial of Ho…
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VAN Loan v. State, 779 So. 2d 497 (Fla. 2d DCA 2000)…rt reexamined the Pearce rule and found that the presumption of vindictiveness as set forth in Pearce was inapplicable where “different sentencers assessed the varying sentences.” McCullough, 475 U.S. at 140, 106 S.Ct. 976. See also Graham v. State, 681 So. 2d 1178 (Fla. 2d DCA 1996) (finding that, because the second sentence was not imposed by the same judge who imposed the original sentence, the defendant has the burden of proving actual vindictiveness). The McCullough case also permits the trial court to co…
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Carter v. State, 791 So. 2d 568 (Fla. 3d DCA 2001)…475 U.S. 134, 140, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986)(reexamining Pearce rule and finding that the presumption of vindictiveness as set forth in Pearce was inapplicable where “different sentencers assessed the varying sentences”); Graham v. State, 681 So. 2d 1178 (Fla. 2d DCA 1996)(finding that, because the second sentence was not imposed by the same judge who imposed the original sentence, the defendant has the burden of proving actual vindictiveness). Here the successor judge considering the convictions a…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Wemett v. State, 567 So. 2d 882 (Fla. 1990)
- Thomas v. State, 638 So. 2d 169 (Fla. 1st DCA 1994)
- A.A. Smith v. Miller, 617 So. 2d 789 (Fla. 1st DCA 1993)