GARY JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A claim of vindictive sentencing cannot be raised in a rule 3.800(a) motion, and the appellant's claim is barred by law of the case and collateral estoppel.
[1] A claim of vindictive sentencing cannot be raised in a motion to correct an illegal sentence.
[2] A claim of vindictive sentencing is barred by the doctrines of law of the case and collateral estoppel when previously litigated and affirmed on direct appeal.
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 intelligenceAppellant challenged his sentence of thirty years, imposed after a retrial, as vindictive. His original sentence was fifteen years plus probation. The…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse North Carolina V. Pearce Presumption Of Vindictiveness cases and more on FLexlaw
On Motion for Rehearing
We deny appellant’s motion for rehearing, withdraw our prior opinion and substitute the following in its place.
Appellant challenges the trial court’s order denying his motion to correct an illegal sentence. He claims that his sentence of thirty years, imposed for carjacking and armed burglary of a conveyance, was vindictive pursuant to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089 (1969), because it was imposed after a retrial upon the reversal of his original conviction and original sentence of two concurrent terms of fifteen years plus probation.1 We affirm. A claim of a vindictive sentence cannot be raised in a rule 3.800(a) motion. Reese v. State, 896 So.2d 807, 807 (Fla. 3d DCA 2005).
Appellant raised the identical issue in the direct appeal from his second sentencing, and this court affirmed. Jackson v. State, 67 So.3d 219 (Fla. 4th DCA 2011). The Florida Supreme Court dismissed review. Jackson v. State, 72 So.3d 746 (Fla. 2011). The U.S. Supreme Court denied his petition for certiorari. Jackson v. Florida, — U.S. -, 132 S.Ct. 1641, 182 L.Ed.2d 239 (2012).
Appellant’s attempt to relitigate his claim of vindictive sentencing is barred by the doctrines of law of the case and collateral estoppel. Concepcion v. State, 944 So.2d 1069, 1071 (Fla. 3d DCA 2006) (citing State v. McBride, 848 So.2d 287 (Fla. 2003)). There is no manifest injustice because appellant’s claim rests on the Pearce presumption of vindictiveness which does not apply where, as here, a different sentencing judge imposes the harsher sentence after retrial. See Texas v. McCullough, 475 U.S. 134, 138-40, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986); Graham v. State, 681 So.2d 1178, 1178 (Fla. 2d DCA 1996).
Affirmed.
WARNER, STEVENSON and MAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Kimble v. State (Fla. 1st DCA 2021)…when he was resentenced pursuant to a successful motion to correct sentencing error. Because the postconviction court properly determined that a vindictive sentencing claim is not cognizable under rule 3.800(a), we affirm. See Jackson v. State, 193 So. 3d 1, 1 (Fla. 4th DCA 2014); Buono v. State, 900 So. 2d 672, 672 (Fla. 5th DCA 2005); Taylor v. State, 897 So. 2d 495, 496 (Fla. 3d DCA 2005); Boyd v. State, 880 So. 2d 726, 727 (Fla. 2d DCA 2004). AFFIRMED. 2 RAY, MAKAR, and M.K. THOMAS, JJ.,…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Texas v. McCULLOUGH, 475 U.S. 134 (U.S. 1986)
- Moore v. State, 944 So. 2d 1069 (Fla. 5th DCA 2006)
- Graham v. State, 681 So. 2d 1178 (Fla. 2d DCA 1996)
- Evans Reese v. State, 896 So. 2d 807 (Fla. 3d DCA 2005)
- Jackson v. State, 984 So. 2d 668 (Fla. 4th DCA 2008)