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
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, Smiths
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 counsels 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, 104 S.Ct. 2052, 80 L.Ed.2d 674
(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 counsels errors, he would not have pleaded guilty and
would have insisted on going to trial." Hill v.
Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203
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, 89 S.Ct. 2072,
23 L.Ed.2d 656 (1969), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104
L.Ed.2d 865 (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
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 Loves counsel was not ineffective for raising
a meritless disparate sentencing objection to Loves
sentence. Hitchcock, 991 So.2d at 361.
Because Love failed to show that his counsel rendered
ineffective assistance, the postconviction court did not err