RAYMOND ALLENDE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Raymond Allende appealed his resentencing following a conviction for cocaine trafficking, arguing the new sentence was vindictive. The court affirmed the new 20-year sentence, holding that no presumption of vindictiveness arises when a different judge imposes the second sentence, and Allende failed to prove actual vindictiveness.
The court held that no presumption of vindictiveness arises when a different judge imposes the second sentence, shifting the burden to the appellant to prove actual vindictiveness. Because Allende presented nothing to demonstrate the second judge was vindictive, he failed to meet his burden, and the lawful sentence was affirmed.
[1] A presumption of vindictiveness does not arise when a different judge imposes a subsequent sentence than the judge who imposed the original sentence.
[2] When no presumption of vindictiveness applies, the burden of proving actual vindictiveness rests on the defendant.
Previewing 2 of 4 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“A presumption of vindictiveness does not arise here, in part, because the judge who imposed the first sentence was not the judge who imposed the second sentence.”
Establishes the key rule that different judges eliminate the presumption of vindictiveness.
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Join FLexlaw to unlock all legal intelligenceAllende was originally sentenced to 25 years for trafficking in cocaine in excess of 200 grams. Following his first appeal (which was procedurally bar…
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ORFINGER, J.
Raymond Allende was originally sentenced to twenty-five years in prison following his conviction for trafficking in cocaine in excess of 200 grams.1 In his first appeal to this Court, Mr. Allende contended that the trial judge vindictively sentenced him, as a consequence of proceeding to trial, rather than accepting the State’s plea offer. Finding that Mr. Allende’s claim was procedurally barred, we affirmed. See Allende v. State, 882 So. 2d 472 (Fla. 5th DCA 2004). However, in a concurring opinion, two panel members strongly suggested that on the merits, Mr. Allende’s claim of a vindictive sentence was well-taken.
Thereafter, Mr. Allende filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that trial counsel was ineffective for failing to object to the original vindictive sentence. The State conceded Mr. Allende’s entitlement to resentencing, and the matter was reassigned to a new judge. After familiarizing herself with the case as required by Florida Rule of Criminal Procedure 3.231, a new sentencing hearing was conducted. Mr. Allende was sen tenced to a term of twenty years in prison, followed by probation. Now on appeal, while conceding that the sentence imposed is legal, Mr. Allende contends that the sentence is still vindictive. We disagree and affirm.
A presumption of vindictiveness does not arise here, in part, because the judge who imposed the first sentence was not the judge who imposed the second sentence. Richardson v. State, 821 So. 2d 428, 480 (Fla. 5th DCA 2002). Since there is no presumption of vindictiveness, the burden of proving actual vindictiveness is on Mr. Allende. Id. Because he presents nothing to demonstrate that the second trial judge was vindictive, he has failed to meet this burden. See Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Absent vindictiveness, the trial judge was free to impose any lawful sentence. Richardson, 821 So. 2d at 430. As Mr. Allende concedes, the sentence here was lawful and was, therefore, within the trial judge’s discretion.
AFFIRMED.
LAWSON and EVANDER, JJ., concur. . § 893.135(l)(b), Fla. Stat. (2002).
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Citator
Cited By
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Strong v. State, 263 So. 3d 199 (Fla. 5th DCA 2019)
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Turner v. Sec'y, Fla. Dep't of Corr. (M.D. Fla. 2020)…rease in sentence resulted from actual vindictiveness. Alabama v. Smith, 490 U.S. 794, 799 (1989). In fact, “[s]ince there is no presumption of vindictiveness, the burden of proving actual vindictiveness is on [the defendant].” Allende v. State, 942 So. 2d 950, 951 (Fla. 5th DCA 2006) (citing Richardson v. State, 821 So. 2d 428, 430 (Fla. 5th DCA 2002)). In the instant case as to Ground Five, Defendant has failed to fulfill his burden of showing the trial judge punished him for exercising his due pr…
Authorities Cited
- Alabama v. Smith, 490 U.S. 794 (U.S. 1989)
- Richardson v. State, 821 So. 2d 428 (Fla. 5th DCA 2002)
- Allende v. State, 882 So. 2d 472 (Fla. 5th DCA 2004)