HAROLD BUSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant demonstrated a sufficient showing that the life sentences imposed were presumptively vindictive, requiring an evidentiary hearing.
[1] A sentence imposed after a defendant withdraws a guilty plea and proceeds to trial is presumptively vindictive when it is significantly harsher than the sentence offered…
[2] A defendant is entitled to an evidentiary hearing on a post-conviction relief motion alleging vindictive sentencing.
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Join FLexlaw to unlock all legal intelligenceAppellant was initially offered a reduced sentence for a guilty plea, but after withdrawing his plea, he proceeded to trial and received harsher life …
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PER CURIAM.
We review the order of the circuit court summarily denying Appellant’s motion for post-conviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse in part and affirm in part.
Petitioner was charged with three counts of robbery with a firearm, two counts of resisting arrest with violence, carrying a concealed firearm, and grand theft. The prosecution initially offered Petitioner a reduced sentence of 25 years as an habitual offender in exchange for a guilty plea. The trial court judge reviewed Petitioner’s sentencing guideline scoresheet and then offered Petitioner an habitual offender sentence of 18 years in exchange for his plea. Petitioner accepted the offer and received the sentence.
After his sentence, Petitioner moved to withdraw his plea. The court granted his motion and his case proceeded to trial. A jury convicted him of two counts of robbery with a firearm, one count of aggravated assault with a firearm, resisting arrest without violence, and carrying a concealed firearm. The trial court sentenced him to concurrent life sentences as an habitual violent felony offender with mandatory minimum sentences of fifteen years on the armed robbery offenses and concurrent ten year sentences on the remaining offenses. Appellant filed a rule 3.850 motion alleging a vindictive sentence and several ineffectiveness of counsel claims including a claim that his counsel failed to object to the increased sentence.
We find Appellant has demonstrated a sufficient showing that the life sentences imposed in Counts I and II are presumptively vindictive. See McDonald v. State, 751 So. 2d 56 (Fla. 2d DCA 1999); Batista v. State, 685 So. 2d 20 (Fla. 3rd DCA 1996). Accordingly, we reverse the trial court’s order and remand for an evidentiary hearing on the claim that his counsel was ineffective as to this issue.
As to Appellant’s remaining claims of ineffective assistance of trial counsel, we find no merit to these claims and affirm that part of the trial court’s order denying relief.
GUNTHER, FARMER and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Prado v. State, 816 So. 2d 1155 (Fla. 3d DCA 2002)…firmatively demonstrates that the defendant’s insistence on a trial was given no consideration in the sentencing. Id. Id. at 58-59; see also Byrd v. State, 794 So. 2d 671 (Fla. 5th DCA 2001), review granted 817 So. 2d 850 (Fla.2002); Bush v. State, 785 So. 2d 1238 (Fla. 4th DCA 2001); King v. State, 751 So. 2d 691 (Fla. 2d DCA 2000); Gillman v. State, 373 So. 2d 935 (Fla. 2d DCA 1979). The state argues that no presumption of vindictiveness arises in the present case because the judge was not “involved” in th…
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Morales v. State, 819 So. 2d 831 (Fla. 4th DCA 2002)…ter imposes a harsher sentence, the sentence is presumed to be vindictive.” Appellant also cites Byrd v. State, 794 So. 2d 671 (Fla. 5th DCA 2001), which agreed with McDonald. Stephney v. State, 564 So. 2d 1246 (Fla. 3d DCA 1990), and Bush v. State, 785 So. 2d 1238 (Fla. 4th DCA 2001), one of our own opinions, also support the theory that there is a presumption of vindictiveness where a plea is rejected and a stiffer sentence is imposed after trial. The source of the presumption of vindictiveness is North Car…
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ST. Pierre v. State, 966 So. 2d 972 (Fla. 2d DCA 2007)…is v. State, 860 So. 2d 1058 (Fla. 5th DCA 2003) (holding that allegation of counsel’s failure to object to vindictive sentence presents a cognizable claim under rule 3.850); Nowells v. State, 840 So. 2d 415 (Fla. 3d DCA 2003) (same); Bush v. State, 785 So. 2d 1238 (Fla. 4th DCA 2001) (same). If this claim were to be afforded an evidentiary hearing, the off-the-record bench conferences in which the plea offers were allegedly made would have to be reconstructed by the testimony of the participants in those disc…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cordell T. Allen v. State, 751 So. 2d 56 (Fla. 5th DCA 1999)
- McDONALD v. State, 751 So. 2d 56 (Fla. 2d DCA 1999)
- Batista v. State, 685 So. 2d 20 (Fla. 3d DCA 1996)