JOE LOUIS DAVIS, JR., 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.
Joe Louis Davis, Jr. was convicted of breaking and entering an automobile with intent to commit a misdemeanor and sentenced to ten years in prison. On appeal via a post-conviction motion, Davis alleged his trial counsel was incompetent and that a plea bargain promising a 2.5-year sentence was rejected, making his 10-year sentence unconstitutionally punitive for exercising his right to trial.
An appellate court need not remand for resentencing based merely on an allegation that a 2.5-year sentence was promised in plea negotiations without establishing who made the promise, whether it was actually made, and providing sufficient factual support to warrant an evidentiary hearing. Conclusory allegations of incompetent counsel unsupported by trial facts do not justify an evidentiary hearing.
[1] A mere allegation of a promised sentence, without supporting evidence, is insufficient to justify an evidentiary hearing on a motion to vacate a sentence.
[2] A trial judge may not penalize a defendant for not admitting guilt.
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 trial judge may not penalize a defendant for not admitting guilt and also that the imposition of a heavier sentence upon re-conviction after the granting of a new trial "chills the exercise of basic constitutional rights."”
Establishes the controlling constitutional principle that sentencing cannot punish exercise of right to trial
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavis was convicted by jury for breaking and entering an automobile with intent to commit a misdemeanor. He was sentenced to ten years in state prison…
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 Incompetence Of Counsel cases and more on FLexlaw
Appellant, Joe Louis Davis, Jr., was convicted by jury for the crime of breaking and entering an automobile with intent to commit a misdemeanor. Following the trial, the judge sentenced appellant to the state prison for a term of ten years. He filed his notice of appeal and this court affirmed. He has subsequently filed a CrPR 3.850, 33 F.S.A., motion alleging that his counsel was incompetent and that in plea negotiations he refused to accept a sentence of two and one half years. He asserts that since the maximum sentence was imposed after a two and one half year sentence was promised in plea negotiations the sentence was unconstitutional.
Appellant cites voluminous federal cases which correctly state the law to the effect that a trial judge may not penalize a defendant for not admitting guilt and also that the imposition of a heavier sentence upon re-conviction after the granting of a new trial “chills the exercise of basic constitutional rights.” This, of course, is good law and is the law of Florida as well as federal law. While we have great respect for the federal courts, we find nothing in the cases cited requiring an appellate court, be it federal or state, to remand for resen-tencing instituting a two and one half year sentence on the mere allegation that somebody, somewhere, in some conversation promised this defendant only two and one half years.
The record in no way supports a promise from the trial judge, nor does appellant’s brief urge that such a promise was made. He simply says, “On September 27, 1972, defendant filed a motion to vacate, alleging that he was sentenced to ten years, because he refused to accept the negotiated plea to receive a sentence of 2J4 years.” We do not know who made this promise or whether in fact such a promise was made. A mere allegation, without more, is not a sufficient showing to justify an evidentiary hearing. See, Blackman v. State, 265 So. 2d 734 (3d D.C.A.Fla.1972); Weathington v. State, 262 So.2d 724 (3d D.C.A.Fla. 1972).
The assertion that incompetent counsel represented appellant is without merit. It is again only an allegation, unsupported by anything that happened at the trial and again does not support an eviden-tiary hearing.
The order below is hereby affirmed.
HOBSON and BOARDMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Gillman v. State, 373 So. 2d 935 (Fla. 2d DCA 1979)…ilty. 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 shows whether he recognizes and repents his crime has been eloquently rebutted as follows in Scott v. United States, 136 U.S.App.D.C. 377 at 383— 384, 419 F. 2d 264 a…
-
del Percio v. The City OF Daytona Beach, 449 So. 2d 323 (Fla. 5th DCA 1984)…935 (Fla. 2d DCA 1979). For this reason, I would vacate the sentence imposed on Moore and remand her case to the lower court for resentencing. See State v. Smith, 360 So. 2d 21 (Fla. 4th DCA), cert. denied, 366 So. 2d 885 (Fla.1978); Davis v. State, 277 So. 2d 790 (Fla. 2d DCA 1973); Daniels v. State, 262 So. 2d 725 (Fla. 3d DCA 1972). For the reasons stated in this dissent, I would deny Del Percio’s petition for certio-rari, and grant Moore’s petition, vacate the sentence imposed upon her, and remand her ca…
-
Myles v. State, 280 So. 2d 516 (Fla. 2d DCA 1973)…App.1972, 263 So. 2d 593, affirmed. We have reviewed the record, considered the points raised on the appeal by appellant and find them to be without merit, being based on mere allegation, without more. See rationale of Davis v. State, Fla.App.1973, 277 So. 2d 790. The record does not support the contention of appellant that he is entitled to an eviden-tiary hearing. We point out that the “MOTION TO VACATE CONVICTION/SENTENCE” filed by appellant, pro se, challenged the legality of jury selection in Hillsboro…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weathington v. State, 262 So. 2d 724 (Fla. 3d DCA 1972)
- Blackman v. State, 265 So. 2d 734 (Fla. 3d DCA 1972)