        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             EDWARD AUSTIN,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D16-1524

                            [February 28, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Joel T. Lazarus, Judge; L.T. Case No. 00-11925CF10A.

   David W. Collins of Collins Law Firm, Monticello, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   The trial court originally imposed a concurrent life sentence but then
imposed a consecutive life sentence on resentencing. The issue is whether
the sentence is vindictive. We find the sentence is vindictive because the
reasons for the more severe sentence did not affirmatively appear in the
record and were not based on appellant’s conduct occurring after the
original sentencing proceeding. We reverse and remand for resentencing
before a different judge.

    In 2001, the court sentenced appellant as a prison releasee reoffender
to life in prison for burglary with a battery to run concurrently with his life
sentence in a 1992 case. Appellant filed a rule 3.800 motion to correct
illegal sentence, arguing it was improper to sentence him as a prison
releasee reoffender because burglary of a dwelling with a battery does not
qualify as a forcible felony. The court granted the motion to correct illegal
sentence. The state then filed a notice to declare appellant a habitual
felony offender.

   During resentencing before the original sentencing judge, defense
counsel informed the court that the scoresheet was incorrect and should
be ten points higher. Defense counsel also informed the court that
appellant would be parole eligible in the 1992 case after serving an
additional seven years, for a total of twenty-two years. According to
defense counsel, during the original sentencing everyone was under the
impression that appellant would never have an opportunity to be released.
Defense counsel requested a sentence of twenty-two or thirty years.

    The trial court stated that it would not trust appellant in the community
if he got out early. The court then sentenced appellant as a habitual felony
offender to life imprisonment consecutive to his sentence in the 1992 case.
Appellant appealed.

   During the pendency of his appeal, appellant filed a motion to correct
sentence and an amended motion to correct sentencing error. Appellant
argued that the increased length of his sentence from two concurrent life
sentences to two consecutive life sentences was vindictive in violation of
North Carolina v. Pearce, 395 U.S. 711 (1969). Appellant argued that his
sentence should be changed to run concurrently. The trial court did not
rule on the motion within sixty days, and therefore it is deemed denied.
See Fla. R. Crim. P. 3.800(b)(2)(B).

   On appeal, appellant argues that the trial court imposed an
unconstitutionally vindictive sentence by imposing a consecutive life
sentence without pronouncing reasons justifying the more severe
sentence. The state responds that additional information presented at
resentencing rebutted any suggestion of vindictiveness and that a
consecutive life sentence was necessary to effectuate the court’s original
intent.

   “Whether the trial court imposed a vindictive sentence is a question of
law which this court reviews de novo.” Pierre v. State, 114 So. 3d 319, 324
(Fla. 4th DCA 2013).

     Both the United States and Florida Constitutions declare that
governments cannot deprive any person of life, liberty, or property without
due process of law. U.S. Const. amends. V, XIV; Fla. Const. art. I, § 9. In
Pearce, the United States Supreme Court stated that “[d]ue process of law
. . . requires that vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the sentence he receives
after a new trial.” 395 U.S. at 725. Thus, to assure the absence of
retaliatory motivation, “whenever a judge imposes a more severe sentence
upon a defendant after a new trial, the reasons for his doing so must
affirmatively appear.” Id. at 726. Further,


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      [t]hose reasons must be based upon objective information
      concerning identifiable conduct on the part of the defendant
      occurring after the time of the original sentencing proceeding.
      And the factual data upon which the increased sentence is
      based must be made part of the record, so that the
      constitutional legitimacy of the increased sentence may be
      fully reviewed on appeal.

Id.

   The Pearce requirements “do not apply in every case where a convicted
defendant receives a higher sentence on retrial.” Alabama v. Smith, 490
U.S. 794, 799 (1989) (alteration omitted) (quoting Texas v. McCullough,
475 U.S. 134, 138 (1986)). Pearce is limited to circumstances “in which
there is a ‘reasonable likelihood’ that the increase in sentence is the
product of actual vindictiveness on the part of the sentencing authority.
Where there is no such reasonable likelihood, the burden remains upon
the defendant to prove actual vindictiveness.” Id. (quoting United States v.
Goodwin, 457 U.S. 368, 373 (1982)).          The Pearce presumption of
vindictiveness has been applied “when the same trial judge imposes a
harsher sentence after the defendant successfully attacks the original
sentence.” Graham v. State, 681 So. 2d 1178, 1178 (Fla. 2d DCA 1996);
see also Sands v. State, 899 So. 2d 1208, 1211 (Fla. 5th DCA 2005).

    Rodriguez v. State, 917 So. 2d 958 (Fla. 3d DCA 2005), is on point. In
Rodriguez, the trial court sentenced the defendant to concurrent life
sentences for murder, attempted murder, armed robbery, and armed
trafficking as well as a concurrent thirty-year sentence for conspiracy to
traffic cocaine. The defendant filed a rule 3.800(a) motion, arguing that
attempted murder, armed trafficking, and conspiracy to traffic cocaine
were first-degree felonies subject to a maximum of thirty years. The trial
court granted the motion, and resentenced the defendant to consecutive
life sentences for murder and armed robbery and consecutive thirty-year
sentences for the remaining counts. The Third District held that the
presumption of vindictiveness applied and that consecutive sentences
were not justified as a reflection of the original court’s intent. Id. at 961.

   Similarly, in Gilliam v. State, 582 So. 2d 610 (Fla. 1991), the defendant
was sentenced to death and a concurrent life sentence. After retrial, the
court again imposed the death penalty but sentenced appellant to a
consecutive life sentence without providing any reason for the more severe
sentence.    Citing Pearce, the Florida Supreme Court reversed and
remanded for imposition of a concurrent sentence. Id. at 612 -13; see also
Richardson v. State, 821 So. 2d 428, 431 (Fla. 5th DCA 2002) (finding

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Pearce vindictiveness presumption applied where court imposed harsher
sentence after a successful 3.800 motion without any “independent legal
basis or identifiable conduct on [the defendant’s] part . . . to justify the
harsher sentence”).

   In the instant case, as in Rodriguez, Gilliam, and Richardson, the new
sentence of a consecutive life term constituted “a more severe sentence”
than the original sentence of a concurrent life term. See Pearce, 395 U.S.
at 726; Rodriguez, 917 So. 2d at 960. Therefore, the Pearce presumption
of vindictiveness applies because the judge imposed a harsher sentence
after appellant successfully attacked his original sentence. Additionally,
the judge did not give any reason for the more severe sentence, nor did
anything in the record justify the increased sentence.

    The state claims that additional information presented at resentencing
was sufficient to rebut any allegation of vindictiveness in resentencing. In
support, the state notes its intent to declare appellant a habitual felony
offender, the ten-point scoresheet error, the mistaken impression that
appellant would never have an opportunity to be released for the 1992
case, and appellant’s participation in substance abuse programs. None of
this, however, constitutes “objective information concerning identifiable
conduct on the part of the defendant occurring after the time of the original
sentencing proceeding.” Pearce, 395 U.S. at 726. Nor was any of this
information identified by the court as a basis for its harsher sentence. See
Parker v. State, 977 So. 2d 671, 672 (Fla. 4th DCA 2008) (“[A] trial court
imposing a more severe sentence at resentencing was required to make
the reasons for the more severe sentence affirmatively appear in the
record.”) (citing Pearce, 395 U.S. at 726).

    The state also claims that by imposing a consecutive life sentence, the
trial court was attempting to effectuate the original intent of the court.
However, a consecutive life sentence was not necessary to achieve the
original court’s intent. Because the sentence in the instant case was not
subject to parole, a concurrent life sentence would have achieved the
original intent of ensuring appellant is never released from prison.

   In sum, the Pearce presumption of vindictiveness applies because the
court imposed a harsher sentence after appellant successfully attacked
his original sentence, and nothing in the record justified the increased
sentence. As such, we reverse and remand for resentencing by a different
judge. See Wilson v. State, 845 So. 2d 142, 159 (Fla. 2003) (concluding
that in cases where an unrebutted presumption of judicial vindictiveness
arises, the appropriate remedy is resentencing before a different judge).


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   Reversed and remanded for resentencing.

CIKLIN and KLINGENSMITH, JJ., concur.

                          *        *         *

   Not final until disposition of timely filed motion for rehearing.




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