NELSON VIERA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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This is an appeal from a conviction and a 40 year sentence for trafficking in heroin. We find no trial error and therefore affirm the conviction. However, after consideration of the circumstances surrounding the sentence in light of the factors stated in Wilson v. State, 845 So.2d 142, 156 (Fla.2003), particularly the judge’s enthusiastic advocacy of the State’s pre-trial offer of a ten year sentence in return for a guilty plea, and the unexplained 40 year sentence (the offense carried a 25 year mandatory minimum) which was imposed after the trial which followed the defendant’s rejection of the offer, we must conclude that the sentence was, in legal parlance, “vindictive,” requiring resentencing by another judge. See Brandful v. State, 858 So.2d 367 (Fla. 3d DCA 2003); Compare Ducksworth v. State, 26 So.3d 74 (Fla. 3d DCA 2010).
Affirmed in part, vacated in part, and remanded.
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Citator
Cited By
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Viera v. State, 117 So. 3d 1124 (Fla. 3d DCA 2012)…t-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any [*1125] relief. See Fla. R.App. P. 9.141(b)(2)(A), (D). Reversed and remanded for further proceedings. . See Viera v. State, 35 So. 3d 1005 (Fla. 3d DCA 2010) (remanding for resentencing). . The docket indicates that a "motion to vacate judgment and sentence” was filed on August 31, 2010. That motion was continued several times and was apparently carried through the calendar until Sept…
Authorities Cited
- Wilson v. State, 845 So. 2d 142 (Fla. 2003)
- State v. Canty, 858 So. 2d 367 (Fla. 3d DCA 2003)
- Brandful v. State, 858 So. 2d 367 (Fla. 3d DCA 2003)
- Ducksworth v. State, 26 So. 3d 74 (Fla. 3d DCA 2010)