ANTHONY RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Richardson was convicted of cocaine possession and sentenced to five years in prison after rejecting a three-year plea offer and exercising his right to trial. He appealed arguing the increased sentence constituted judicial vindictiveness, but the court affirmed because the trial judge was not involved in plea negotiations and Richardson failed to prove actual vindictiveness.
The court affirmed the five-year sentence, holding that when a judge has not participated in plea negotiations, a defendant challenging a sentencing increase on vindictiveness grounds bears the burden of proving actual vindictiveness, which Richardson failed to do.
[1] A defendant cannot receive a more severe sentence for exercising the constitutional right to a jury trial instead of pleading guilty.
[2] Judicial vindictiveness in sentencing is a legal concept that does not require personal animosity between the judge and the defendant.
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Join FLexlaw to unlock all legal intelligence“An accused cannot be punished by a more severe sentence because he unsuccessfully exercised his constitutional right to stand trial rather than plead guilty.”
Establishes the foundational constitutional principle against punishing exercise of trial rights
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Join FLexlaw to unlock all legal intelligenceThe State offered Richardson a three-year guidelines sentence in exchange for guilty pleas to three pending offenses. The trial judge did not particip…
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PER CURIAM.
Anthony Richardson appeals his conviction for possession of cocaine and the five-year prison sentence imposed. We affirm the conviction without discussion but address the sentencing issue on appeal.
Prior to trial, the State offered a three-year guidelines prison sentence for a guilty plea to three offenses pending against Mr. Richardson. There is no indication the trial judge was involved in the plea negotiations. Mr. Richardson rejected the plea offer and exercised his constitutional right to a jury trial. He was acquitted of two charges and convicted of one lesser-included offense. At sentencing, the trial judge imposed a guidelines sentence of five years in prison. On appeal, Mr. Richardson argues that the record reveals no affirmative reason for the longer sentence other than judicial vindictiveness and therefore the sentence must be reversed.
“An accused cannot be punished by a more severe sentence because he unsuccessfully exercised his constitutional right to stand trial rather than plead guilty.” Gillman v. State, 373 So. 2d 935, 938 (Fla. 2d DCA 1979), certified question answered, 390 So. 2d 62 (Fla.1980). “[A]ny judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.” Id. Judicial vindictiveness in sentencing is “a term of art which expresses the legal effect of a given objective course of action, and does not imply any personal or subjective animosity between the court ... and the defendant.” Frazier v. State, 467 So. 2d 447, 449 n. 4 (Fla. 3d DCA 1985).
While there are cases recognizing vindictiveness challenges when the judge has been involved in the plea negotiations, this critical fact is not present in the record of this case. In the absence of judicial involvement in the plea negotiations, the burden was on Mr. Richardson to prove actual vindictiveness on the part of the sentencing judge, a burden he has not met. See McDonald v. State, 751 So. 2d 56, 59 (Fla. 2d DCA 1999). Accordingly, we affirm the guidelines sentence imposed.
Judgment and sentence affirmed.
FULMER and SILBERMAN, JJ., Concur. BLUE, C.J., Concurs specially.
BLUE, Chief Judge,
Specially concurring.
I concur with the affirmance because I conclude the case law requires affirmance of the sentence imposed. However, I believe the sentence imposed in this case was vindictive. If not vindictive, it abuses the constitutional right to trial by jury and deflowers the word “justice” in criminal justice system.
Mr. Richardson faced three charges: possession of cocaine with the intent to sell; driving with a suspended license for the third time; and resisting arrest without violence — a second-degree felony, a third-degree felony, and a first-degree misdemeanor. Mr. Richardson pleaded not guilty and exercised his right to trial by jury. The jury found him guilty of possession of cocaine, a third-degree felony and a lesser included of the charged possession with intent to sell. The jury found him not guilty of the other two charges.
Before trial, the State had offered a sentence of three years’ imprisonment if Mr. Richardson pleaded guilty to possession of cocaine and the other two charges. After the jury verdict, at sentencing, the State again requested the three-year sentence. The trial judge imposed a five-year sentence. Although Mr. Richardson argues the sentence is vindictive, I accept that case law does not support this contention. If I were permitted, I would reverse and remand for a sentence not to exceed three years.
I can think of only two reasons for the trial judge in this case to impose the five-year sentence. The first is to send a message to other defendants who might appear before him, that the exercise of their right to trial will be punished. The second is to register his disagreement with the decision of the jury.1 I contend that both reasons are improper and should be the basis for a finding of vindictiveness. If not vindictive, they corrupt the homage we pay to the right to trial by jury. Unfortunately, my belief appears not to be the law, and thus I reluctantly concur in the affir-mance of the sentence imposed.
. The record reflects that the judge did not agree with the verdict.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tonnie Lee Martin v. State, 816 So. 2d 187 (Fla. 5th DCA 2002)…the presumptive sentence, above which the trial judge could not go without carrying the burden of showing lack of vindictiveness. It would limit the trial judge’s discretion in sentencing to a degree not required by Warner. In Richardson v. State, 809 So. 2d 69 (Fla. 2d DCA 2002), our sister court ruled in a similar case where the trial court was not involved in plea negotiations and the defendant rejected the plea offer, that no presumption of vindictiveness arose when the defendant received a longer sent…
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Snow v. Crosby, 851 So. 2d 222 (Fla. 3d DCA 2003)…the plea offer, and the full breadth of his exposure if convicted. In my judgment, Warner does not forbid a brief inquiry on this subject. Prado, 816 So. 2d at 1158 n. 2. Accord Bell v. State, 847 So. 2d 558 (Fla. 3d DCA 2003); Richardson v. State, 809 So. 2d 69 (Fla. 2d DCA 2002); Graff v. State, 843 So. 2d 1012 (Fla. 5th DCA 2003). Compare Wilson, 845 So. 2d at 158; Nairn v. State, 837 So. 2d 519 (Fla. 3d DCA 2003). Cf. also Smith v. State, 842 So. 2d 1047 (Fla. 3d DCA 2003)(plea offer made by trial court…1 / 2
Authorities Cited
- Gillman v. State, 373 So. 2d 935 (Fla. 2d DCA 1979)
- Frazier v. State, 467 So. 2d 447 (Fla. 3d DCA 1985)
- State v. Gillman, 390 So. 2d 62 (Fla. 1980)
- Cordell T. Allen v. State, 751 So. 2d 56 (Fla. 5th DCA 1999)
- McDONALD v. State, 751 So. 2d 56 (Fla. 2d DCA 1999)