MELVIN NAIRN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Melvin Nairn was convicted of robbery and sentenced to 30 years in prison. The appellate court affirmed the conviction but reversed the sentence, finding it vindictive because the trial judge imposed the maximum penalty immediately after Nairn rejected an offer of 18 years in exchange for waiving his right to appeal.
The court affirmed the conviction but reversed the sentence as vindictive and remanded with directions to impose an 18-year sentence. A defendant's refusal to waive his right to appeal is not a valid reason to impose a greater sentence, and when a significantly greater sentence is imposed without affirmative justification in the record, vindictiveness must be presumed.
[1] A sentence is considered vindictive when a defendant is penalized with a harsher sentence immediately after refusing to waive their right to appeal.
[2] A defendant's refusal to waive their right to appeal is not a valid reason for imposing a greater sentence.
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Join FLexlaw to unlock all legal intelligence“Having all of this information before him, [the trial judge] offered defendant what he obviously believed was a fair sentence, given all relevant and material factors. The very thorough record in this case is devoid of any indication as to what facts or considerations could possibly have come into play at the time of sentencing that warranted a sentence four times more severe than the judge's original offer.”
Establishes the test for vindictive sentencing: when a significantly harsher sentence is imposed without explanation in the record, vindictiveness is presumed.
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Join FLexlaw to unlock all legal intelligenceNairn was convicted of robbery. At sentencing, the trial judge offered Nairn an 18-year prison term in exchange for giving up his right to appeal. Nai…
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FLETCHER, Judge.
Melvin Nairn was convicted of robbery and sentenced to thirty years in state prison with a mandatory minimum of fifteen years. We affirm the conviction but we reverse the sentence and remand with directions to impose a sentence of 18 years.
At the sentencing hearing following Nairn’s trial and conviction, the trial judge offered Nairn an eighteen year prison term in “exchange” for Nairn’s giving up his right to appeal. Nairn rejected the trial judge’s offer, immediately after which the trial judge sentenced Nairn to the maximum penalty of thirty years. Our review of the record reveals nothing to explain the wherefore between the eighteen year offer and the thirty year sentence imposed moments after Nairn’s rejection, with the exception of Nairn’s refusal to give up his right of appeal.
Setting aside the trial court’s possible over-entanglement in plea bargaining, see State v. Warner, 762 So. 2d 507 (Fla.2000), the sole sentencing issue is whether the thirty year sentence is a “vindictive” one, and we have concluded that it is. As used in the sentencing process the word “vindictive” has lost its dictionary definitions. See American Heritage Dictionary 1430 (1969 ed.)(“disposed to seek revenge”; “unforgiving; bitter; spiteful”). The sentencing term “vindictive” has become a “term of art,” describing the legal effect of a given objective course of action, generally not implying any personal or subjective animosity on the part of the trial judge. See Frazier v. State, 467 So. 2d 447 (Fla. 3d DCA), rev. dismissed, (Fla.1985). That being the case a defendant challenging a sentence as being vindictive may not need to demonstrate that the sentencing judge was acting out of any degree of malice. Rather, the defendant can succeed by showing events such as that described in Charles v. State, 816 So. 2d 731, 735 (Fla. 3d DCA 2002)(foot-notes omitted):
“Having all of this information before him, [the trial judge] offered defendant what he obviously believed was a fair sentence, given all relevant and material factors. The very thorough record in this case is devoid of any indication as to what facts or considerations could possibly have come into play at the time of sentencing that warranted a sentence four times more severe than the judge’s original offer. Because the reasons for this significantly greater sentence do not affirmatively appear in the record so as to assure the absence of vindictiveness, we reverse the fifty-year sentence and remand with directions to impose the twelve-year sentence as a habitual violent offender offered by the trial judge at the conclusion of all the evidence.”
A defendant’s refusal to waive his/ her right to appeal is not a valid reason to impose a greater sentence. There being nothing in the record to show that the imposed sentence is not vindictive, the sentence is reversed and the cause is remanded with directions to impose a sentence of eighteen years.
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Citator
Cited By (12 total)
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Baxter v. State, 127 So. 3d 726 (Fla. 1st DCA 2013)…ersonal or subjective animosity on the part of the trial judge. That being the case a defendant challenging a sentence as being vindictive may not need to demonstrate that the sentencing judge was acting out of any degree of malice. Nairn v. State, 837 So. 2d 519, 520 (Fla. 3d DCA 2003). Instead, the doctrine is grounded in due process concerns as a prophylactic measure to allow trial judges to be invited to become involved in plea discussions, but doing so at (perhaps more than) an arm’s length. Accurately…
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Smith v. State, 842 So. 2d 1047 (Fla. 3d DCA 2003)…but not the remedy of resentencing before a different judge) is in accord with a long series of cases decided by this court. See Nowells v. State, 840 So. 2d 415 (Fla. 3d DCA 2003); Laferta v. State, 837 So. 2d 562 (Fla. 3d DCA 2003); Naim v. State, 837 So. 2d 519 (Fla. 3d DCA 2003); Charles v. State, 816 So. 2d 731 (Fla. 3d DCA 2002); see also Harris v. State, 839 So. 2d 785 (Fla. 2d DCA Case 2003); Byrd v. State, 794 So. 2d 671 (Fla. 5th DCA 2001), review granted, 817 So. 2d 850 (Fla.2002), approved in part…1 / 2
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Faustino Blanco v. State, 849 So. 2d 381 (Fla. 3d DCA 2003)…initions.... The sentencing term “vindictive’ has become a ‘term of art,’ describing the legal effect of a given objective course of action, generally not implying any personal or subjective animosity on the part of the trial judge.” Nairn v. State, 837 So. 2d 519, 520 (Fla. 3d DCA 2003). Recently, in Wilson v. State, 845 So. 2d 142 (Fla.2003), the Supreme Court of Florida held that the district courts should look at the totality of circumstances when determining whether a defendant’s constitutional right to…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Warner, 762 So. 2d 507 (Fla. 2000)
- Frazier v. State, 467 So. 2d 447 (Fla. 3d DCA 1985)
- Charles v. State, 816 So. 2d 731 (Fla. 3d DCA 2002)