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Austin v. State

Florida Court of Appeals, Fourth District

February 28, 2018

EDWARD AUSTIN, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. 00-11925CF10A.

          David W. Collins of Collins Law Firm, Monticello, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

          Levine, J.

         The 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.

         In 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 offender.

         During 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.

         The 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 appealed.

         During 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).

         On 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 intent.

         "Whether 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).

         Both 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 the ...

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