DEVON F. EVANS, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Charles E.
L. Dimmig, II, Public Defender, and Julius J. Aulisio,
Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for Appellee.
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.
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.
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." 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.
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.
subsequent sentencing hearing, the trial court observed as
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
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.
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. ...