RODOLFO G. ORTIZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion to correct an illegal sentence was properly denied because it failed to allege or provide evidence of judicial participation in plea negotiations, which is required to support a claim of vindictive sentencing.
The defendant moved to correct an illegal sentence, alleging vindictive sentencing due to judicial participation in plea negotiations. The trial court…
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RAMIREZ, J.
Rodolfo G. Ortiz has moved for rehearing of our per curiam affirmance of the trial court’s order denying his motion to correct an illegal sentence pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. He claimed in his motion that his sentence was illegal because it violated due process in that the sentence imposed was vindictive. He alleged that before the start of trial, the court asked the State what was the plea offer. The State responded by explaining what their offer was before trial and what it would be requesting if Ortiz was convicted.
Ortiz relies on Wilson v. State, 845 So. 2d 142, 156 (Fla.2003), which condemned judicial participation in plea negotiations followed by a harsher sentence. Ortiz’s motion, however, fails to allege judicial participation in any plea negotiations. In denying his motion, the trial court explained that the plea offer was made by the State, not the judge. In his motion for rehearing before us, Ortiz argues that the trial judge participated in the negotiations, but he has not produced any evidence to corroborate his allegation. To raise an “illegal sentence” claim under rule 3.800(a) of the Rules of Criminal Procedure, 1) the error must have resulted in an illegal sentence, 2) the error must appear on the face of the record, and 3) the motion must affirmatively allege that the court records demonstrate on their face an entitlement to relief. Jackson v. State, 803 So. 2d 842, 844 (Fla. 1st DCA 2001). This third requirement would necessitate more than mere conclu-sory allegations, but must, at a minimum, show how and where the record demonstrates an entitlement to relief. Id.
Ortiz has neither alleged nor has he attached any documentary proof that the judge participated in any plea negotiations. Therefore, as the trial court explained, there would be no factual basis for a finding of vindictiveness.
Rehearing is denied.
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Lacce Wright v. State, 891 So. 2d 618 (Fla. 3d DCA 2005)…Procedure 3.800(a). Valencia v. State, 645 So. 2d 1085 (Fla. 3d DCA 1994). There are two more recent cases which addressed vindictive sentencing claims which had been brought under Rule 3.800(a), but both are distinguishable. In Ortiz v. State, 884 So. 2d 1086 (Fla. 3d DCA 2004), this court issued an opinion denying a claim of vindictive sentencing which had been brought under Rule 3.800(a). There is no indication that any procedural objection was raised to the use of Rule 3.800(a) in that case, and the p…
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Evans Reese v. State, 896 So. 2d 807 (Fla. 3d DCA 2005)…DCA), rev. denied, 888 So. 2d 621 (Fla.2004). We comment briefly on two recent cases from this court which addressed vindictive sentencing claims which had been brought [*808] under Rule 3.800(a). Both cases are distinguishable. In Ortiz v. State, 884 So. 2d 1086 (Fla. 3d DCA 2004), this court issued an opinion denying a claim of vindictive sentencing which had been brought under Rule 3.800(a). There is no indication that any procedural objection was raised to the use of Rule 3.800(a) in that case, and the p…
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Taylor v. State, 897 So. 2d 495 (Fla. 3d DCA 2005)…la. 2d DCA), rev. denied, 888 So. 2d 621 (Fla.2004). We comment briefly on two recent cases from this court which addressed vindictive sentencing claims which had been brought under Rule 3.800(a). Both cases are distinguishable. In Ortiz v. State, 884 So. 2d 1086 (Fla. 3d DCA 2004), this court issued an opinion denying a claim of vindictive sentencing which had been brought under Rule 3.800(a). There is no indication that any procedural objection was raised to the use of Rule 3.800(a) in that case, and the p…
Authorities Cited
- Wilson v. State, 845 So. 2d 142 (Fla. 2003)
- Jackson v. State, 803 So. 2d 842 (Fla. 1st DCA 2001)