          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D19-368
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MARVIN LOVE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.

                          October 30, 2019


PER CURIAM.

     Marvin 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, we affirm.

     Love 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.

     In his 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.

    To show 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).

     But 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).

     Love 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.

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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.

     Because Love failed to show that his counsel rendered
ineffective assistance, the postconviction court did not err in
denying the motion for postconviction relief.

    AFFIRMED.

B.L. THOMAS, ROWE, and WINOKUR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Marvin Love, pro se, Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.



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