final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Marianne L.
Love, pro se, Appellant.
Moody, Attorney General, and Heather Flanagan Ross, Assistant
Attorney General, Tallahassee, for Appellee.
Love appeals an order summarily denying his motion for
postconviction relief. Love claims his counsel was
ineffective for not objecting to a vindictive and disparate
sentence. Because the record conclusively refutes this claim,
entered guilty pleas in two separate cases. In the first
case, Love pleaded guilty to armed robbery with possession of
a firearm and kidnapping with possession of a firearm. The
trial court sentenced Love to concurrent terms of twenty
years' imprisonment with a ten-year mandatory minimum. In
the second case, Love pleaded guilty to armed robbery and
kidnapping. He was sentenced to concurrent terms of twenty
years' imprisonment to run concurrently with the
sentences in the first case. Love did not file a direct
appeal in either case.
postconviction motion, Love claims that he was similarly
situated to his co-defendant, Joylynn Smith, and should have
received a sentence similar to hers. Instead, Smith's
sentence was much lighter: she received two years'
imprisonment, followed by three years' probation. Love
argues that his counsel was ineffective for not objecting to
his sentences as vindictive or disparate.
ineffective assistance of counsel, Love was required show
that counsel's performance was outside the wide range of
reasonable professional assistance, and that such conduct
prejudiced the outcome of the proceedings because without the
conduct there is a reasonable probability that the outcome
would have been different. Strickland v. Washington,
466 U.S. 668, 687-88, 691-92 (1984); Spencer v.
State, 842 So.2d 52 (Fla. 2003). Because he entered a
guilty plea, Love was also required to show "that there
is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill v. Lockhart,
474 U.S. 52, 59 (1985).
Love has not shown ineffective assistance of counsel because
he did not show that the trial court imposed a vindictive
sentence. A sentence is vindictive when a court punishes a
defendant for exercising his constitutional rights, such as
when a court imposes a longer sentence after the defendant
has prevailed on an appeal or collateral motion. North
Carolina v. Pearce, 395 U.S. 711, 723-24 (1969),
overruled on other grounds by Alabama v. Smith, 490
U.S. 794 (1989). Love did not show that the trial court
sentenced him more harshly because he exercised a
constitutional right. His counsel was not ineffective for not
raising this meritless objection. Hitchcock v.
State, 991 So.2d 337, 361 (Fla. 2008).
also did not show that his counsel was ineffective for
failing to object to his sentence as disparate because Love
and his co-defendant were not in fact similarly situated. In
a criminal case not involving the death penalty, a sentence
"violates the Equal Protection Clause only if it
reflects disparate treatment of similarly situated defendants
lacking any rational basis." Peters v.
State, 128 So.3d 832, 853 (Fla. 4th DCA 2013)
(quoting United States v. Pierce, 409 F.3d 228, 234
(4th Cir. 2005)). Here, the charged offenses, the pleas, and
the sentences available to Love and his co-defendant were
markedly different. First, the charges were distinct. Unlike
Love, Smith was not charged with possession of a firearm.
Second, their pleas were not the same. Smith pleaded to two
counts of armed robbery and two counts of kidnapping. Third,
Smith was eligible for and received a youthful offender
sentence because she was seventeen years old at the time of
the offense. § 958.04, Fla. Stat. (2009) (". . . if
the offender is younger than 21 years of age at the time
sentence is imposed"). Love was twenty-six years old at
the time of the offense and did not qualify for a youthful
offender sentence. The differences in the charges, pleas, and
eligibility for youthful offender sentencing show that Love
was not similarly situated to Smith. And so Love's
counsel was not ineffective for raising a meritless disparate
sentencing objection to Love's sentence.
Hitchcock, 991 So.2d at 361.
Love failed to show that his counsel rendered ineffective
assistance, the postconviction court did not err in denying
the motion for postconviction relief.
Thomas, Rowe, and ...