BENJAMIN WEATHINGTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Benjamin Weathington was convicted by jury of robbery and sentenced to 35 years in prison. On appeal, he challenged the sentence as unconstitutional punishment for exercising his right to trial by jury, arguing the disparity with his co-actor's 5-year plea-bargained sentence constituted due process and cruel and unusual punishment violations. The court affirmed, holding that while the sentencing disparity is troubling, a sentence within statutory limits is not subject to appellate review.
While sentencing disparities between co-defendants who choose different paths (plea versus trial) may be troubling, a sentence within statutory limits is not subject to appellate review. The court held that Weathington was not denied any constitutional right and the 35-year sentence does not constitute cruel and unusual punishment.
[1] A sentence within statutory limits is not subject to appellate review.
[2] A defendant is not denied due process or subjected to cruel and unusual punishment by a sentence within legal limits, even if it is significantly longer than a sentence r…
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“Of course, if this were the case, the sentence would be unconstitutional.”
Establishes that a sentence imposed solely to punish exercise of jury trial right would violate the Constitution
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Join FLexlaw to unlock all legal intelligenceWeathington was charged with robbery. His co-actor in the crime pleaded guilty following a plea bargain and received a 5-year sentence. Weathington de…
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The appellant was charged with the crime of robbery, found guilty by a jury, and adjudicated guilty by the court. He was sentenced to thirty-five years in the state penitentiary. He presents three points on appeal.
Appellant’s second and third points are directed respectively to the denial of his motion for mistrial because of alleged prejudice resulting from a remark by the prosecutor, and to the denial of appellant’s requested instruction to the jury on im*725peachment of a witness. We have examined the record in the light of these points and find that no error is demonstrated. We therefore do not deal further with these two points.
Appellant’s first point on appeal is of greater interest. It is as follows:
“Whether the thirty five years sentence imposed on the defendant by the trial judge after the denial of a pre-sentence investigation constitutes a denial of due process, an infliction of cruel and unusual punishment and the extraction of a gross penalty on the defendant’s exercise of his right to trial by jury guaranteed by the state and federal constitutions.”
The substance of this point appears to be that the appellant received a heavy sentence because he dared to ask for a jury trial. Of course, if this were the case, the sentence would be unconstitutional. However, according to the record, what actually occurred is that appellant’s co-actor in the crime pleaded guilty after a properly negotiated plea bargain and received a five year sentence. See Jones v. State, Fla.App.1970, 237 So,2d 249; Reed v. State, Fla.App.1967, 204 So.2d 26; also see Rule 3.170, R.Cr.P., 33 F.S.A.; American Bar Association Project on Minimum Standards for Criminal Justice (1968). Appellant, on the other hand, denied that he was the person involved, pleaded not guilty, was found guilty by a jury, and was sentenced to a term of thirty-five years. Our review of the record does not substantiate appellant’s assertion that he was denied any right which would constitute a denial of due process, nor do we find that the sentence of thirty-five years in the state penitentiary constitutes cruel and unusual punishment. While such a diversity in results between the two paths pursued by the convicted actors may be quite shocking to the judicial conscience of the appellate court, we must hold that since the sentence of thirty-five years in, the state penitentiary is within the legal limits set by the statute, the sentence is not subject to review in this court. See Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943); cf. Cole v. State, Fla.App.1972, 262 So.2d 903.
Affirmed.
(concurring specially).
I concur in the majority opinion of af-firmance because the record herein does not disclose such but, undoubtedly, if a trial court is pursuing a course of conduct resulting in a greater imposition of sentence on the defendants convicted by a jury [as opposed to those defendants convicted after a non-jury trial] so much of such a sentence as is excessive under the circumstances would be unconstitutional. Conduct of this nature by a trial court would have a “chilling effect” on a defendant availing himself of his constitutional right to a trial by jury.
BARKDULL, Chief Judge
(concurring specially).
I concur in the majority opinion of af-firmance because the record herein does not disclose such but, undoubtedly, if a trial court is pursuing a course of conduct resulting in a greater imposition of sentence on the defendants convicted by a jury [as opposed to those defendants convicted after a non-jury trial] so much of such a sentence as is excessive under the circumstances would be unconstitutional. Conduct of this nature by a trial court would have a “chilling effect” on a defendant availing himself of his constitutional right to a trial by jury.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (15 total)
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City OF Daytona Beach v. Del Percio, 476 So. 2d 197 (Fla. 1985)…r instance when one defendant plea bargains for a lesser punishment while the other goes to trial, are not per se indicative that the harsher sentence is an impermissible punishment for exercising the right to trial. See, e.g., Weathington v. State, 262 So. 2d 724 (Fla. 3d DCA), cert. denied, 267 So. 2d 330 (Fla.1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973), pet. for writ of habeas corpus denied sub nom., Weathington v. Wainwright, 486 F.Supp. 934 (S.D.Fla.1979), aff'd, 618 F. 2d 118…
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Gillman v. State, 373 So. 2d 935 (Fla. 2d DCA 1979)…d 138 (1968). An accused cannot be punished by a more severe sentence because he unsuccessfully exercised his constitutional right to stand trial rather than plead guilty. Baker v. United States, 412 F. 2d 1069 (5th Cir. 1969); Weathington v. State, 262 So. 2d 724 (Fla. 3d DCA 1972); see also State v. Smith, 360 So. 2d 21 (Fla 4th DCA 1978); Hankerson v. State, 326 So. 2d 200 (Fla. 4th DCA 1976); Davis v. State, 277 So. 2d 790 (Fla. 2d DCA 1973). The sentencing judge’s view that a defendant’s choice of plea…
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Gallucci v. State, 371 So. 2d 148 (Fla. 4th DCA 1979)…se bounds. However, a trial court may not impose a greater sentence on a defendant because such defendant avails himself of his constitutional right to a trial by jury. Hankerson v. State, 326 So. 2d 200 (Fla. 4th DCA 1976)1; Weatherington v. State, 262 So. 2d 724 (Fla. 3d DCA 1972). It is true that in considering a sentence for a defendant who has pleaded guilty a trial court may consider the plea itself as a step toward rehabilitation. However, while it may seem entirely logical, it is not so easy to simply…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 152 Fla. 853 (Fla. 1943)
- Reed v. State, 204 So. 2d 26 (Fla. 1st DCA 1967)
- Jones v. State, 237 So. 2d 249 (Fla. 1st DCA 1970)