final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No.
W. Collins of Collins Law Firm, Monticello, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
trial court originally imposed a concurrent life sentence but
then imposed a consecutive life sentence on resentencing. The
issue is whether the sentence is vindictive. We find the
sentence is vindictive because the reasons for the more
severe sentence did not affirmatively appear in the record
and were not based on appellant's conduct occurring after
the original sentencing proceeding. We reverse and remand for
resentencing before a different judge.
2001, the court sentenced appellant as a prison releasee
reoffender to life in prison for burglary with a battery to
run concurrently with his life sentence in a 1992 case.
Appellant filed a rule 3.800 motion to correct illegal
sentence, arguing it was improper to sentence him as a prison
releasee reoffender because burglary of a dwelling with a
battery does not qualify as a forcible felony. The court
granted the motion to correct illegal sentence. The state
then filed a notice to declare appellant a habitual felony
resentencing before the original sentencing judge, defense
counsel informed the court that the scoresheet was incorrect
and should be ten points higher. Defense counsel also
informed the court that appellant would be parole eligible in
the 1992 case after serving an additional seven years, for a
total of twenty-two years. According to defense counsel,
during the original sentencing everyone was under the
impression that appellant would never have an opportunity to
be released. Defense counsel requested a sentence of
twenty-two or thirty years.
trial court stated that it would not trust appellant in the
community if he got out early. The court then sentenced
appellant as a habitual felony offender to life imprisonment
consecutive to his sentence in the 1992 case. Appellant
the pendency of his appeal, appellant filed a motion to
correct sentence and an amended motion to correct sentencing
error. Appellant argued that the increased length of his
sentence from two concurrent life sentences to two
consecutive life sentences was vindictive in violation of
North Carolina v. Pearce, 395 U.S. 711 (1969).
Appellant argued that his sentence should be changed to run
concurrently. The trial court did not rule on the motion
within sixty days, and therefore it is deemed denied.
See Fla. R. Crim. P. 3.800(b)(2)(B).
appeal, appellant argues that the trial court imposed an
unconstitutionally vindictive sentence by imposing a
consecutive life sentence without pronouncing reasons
justifying the more severe sentence. The state responds that
additional information presented at resentencing rebutted any
suggestion of vindictiveness and that a consecutive life
sentence was necessary to effectuate the court's original
the trial court imposed a vindictive sentence is a question
of law which this court reviews de novo." Pierre v.
State, 114 So.3d 319, 324 (Fla. 4th DCA 2013).
the United States and Florida Constitutions declare that
governments cannot deprive any person of life, liberty, or
property without due process of law. U.S. Const. amends. V,
XIV; Fla. Const. art. I, § 9. In Pearce, the
United States Supreme Court stated that "[d]ue process
of law . . . requires that vindictiveness against a defendant
for having successfully attacked his first conviction must
play no part in the sentence he receives after a new
trial." 395 U.S. at 725. Thus, to assure the absence of
retaliatory motivation, "whenever a judge imposes a more
severe sentence upon a defendant after a new trial, the
reasons for his doing so must affirmatively appear."
Id. at 726. Further,
[t]hose reasons must be based upon objective information
concerning identifiable conduct on the part of the defendant
occurring after the time of the original sentencing
proceeding. And the factual data upon which the increased
sentence is based must be made part of the record, so that