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Evans v. State

Florida Court of Appeals, Second District

September 13, 2019

DEVON F. EVANS, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Sarasota County; Charles E. Roberts, Judge.

          Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.

          LaROSE, Judge.

         Devon F. Evans appeals the judgment and sentences imposed for burglary of an occupied dwelling and grand theft of a dwelling. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.140(b)(1)(F). We affirm the judgment without comment. We write to explain why Mr. Evans' vindictive sentence claim fails to pass muster.

         Background

         A jury found Mr. Evans guilty as charged. The trial court delayed sentencing pending receipt of a presentence investigation report (PSI). Thereafter, the trial court sentenced Mr. Evans as a habitual felony offender (HFO) to twenty years' imprisonment with a fifteen-year mandatory minimum prison releasee reoffender (PRR) term for the burglary charge. The trial court imposed a concurrent term of five years' imprisonment for the grand theft.

         The facts underlying the crimes are not relevant to our disposition. What is pertinent is that, on the morning of trial, the trial court asked whether the parties had tried to resolve the case. The State advised that Mr. Evans qualified as a HFO and PRR and that it "intends to seek both enhancements post trial."[1] The State also reported that Mr. Evans had rejected a proposed seven-year sentence with no sentencing enhancements. The State noted that Mr. Evans' scoresheet reflected a bottom-of-the-guidelines score of about three years.

         The trial court encouraged counsel to confer further with Mr. Evans about a plea. Again, Mr. Evans insisted on going to trial. The trial court then proposed an open plea with an eight-year cap. Mr. Evans rejected this proposal and proceeded to trial.

         At the subsequent sentencing hearing, the trial court observed as follows:

Looking at your criminal history, in my opinion, it is significant. Since you were a juvenile, there's very little time, very few years in which you were not arrested or convicted of a charge other than when you were in prison. And this was a, in my mind, a serious offense involving a burglary of a dwelling, and I will find that based on the timing of this offense and when you were released from prison, that you qualify as a prison releasee reoffender. In addition, based on at least the two prior convictions that I have in front of me, you do also qualify as a habitual offender.
Having listened to the testimony during the trial, having reviewed the presentence investigation outlining all the factors that needed to be addressed, and listening to the argument here today, I'm going to sentence you as follows: On the burglary of the dwelling, I will sentence you as a habitual felony offender to 20 years Department of Corrections with credit for all time served. I'll also find that you qualify, as I said, as a prison releasee reoffender, and therefore you will be required to serve 15 years as a prison releasee reoffender on that count, a day-for-day sentence and with credit for time served.

         Mr. Evans now asserts that "[t]he totality of the circumstances indicate [that] this was a vindictive sentence and [he] was being punished for exercising his right to go to trial." He maintains that although the trial court had to impose the mandatory minimum fifteen-year PRR sentence, "anything beyond that was clearly vindictive," especially where "[t]he trial court failed to point to any specific factors that would cause him to impose a sentence two and a half times greater than the maximum sentence he offered to impose if [Mr. ...


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