Smith v. Wainwright, 81-5273

Citation664 F.2d 1194
Decision Date28 December 1981
Docket NumberNo. 81-5273,81-5273
PartiesFrank A. SMITH, III, Petitioner-Appellant, v. Louie WAINWRIGHT, et al., Respondents-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Robert J. Buonauro, Orlando, Fla., for petitioner-appellant.

Evelyn D. Golden, Asst. Atty. Gen., Daytona Beach, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY, ANDERSON and CLARK, Circuit Judges.

FAY, Circuit Judge:

The appellant, Frank A. Smith III, seeks to overturn his life sentence for second degree murder. Smith claims that his sentence was unlawfully imposed as a punishment for exercising his sixth amendment right to a jury trial. Our examination of the record indicates that Smith was not so penalized; we conclude, instead, that his life term was decreed only after a careful assessment by the trial judge of the relevant sentencing variables. Because we find no abuse of discretion in the sentencing process, we affirm.

I. Procedural History

On March 11, 1974, an information was filed against the appellant, charging him with second degree murder. Following his conviction by a jury, Smith was sentenced to life imprisonment. Smith appealed his conviction to the Florida District Court of Appeal, Fourth District, which affirmed. Smith v. State, 314 So.2d 226 (Fla. 4th DCA 1975). The Supreme Court of Florida denied his subsequent petition for a writ of certiorari. Smith v. State, 345 So.2d 427 (Fla.1976).

On May 10, 1977, Smith moved for mitigation of sentence pursuant to Rule 3.800 of the Florida Rules of Criminal Procedure, alleging that he had been a model prisoner who posed no threat to society. The motion was filed, as statutorily required, within sixty days from the final affirmance. 1 A hearing on the motion, however, was not held until July 21, 1977, one hundred and one days after the appellate mandate. Following the hearing, trial Judge DeManio reduced Smith's sentence to a term of from two to six years.

The State of Florida appealed the reduction to the Fourth District Court of Appeal, which reinstated the life sentence. Since the trial judge's order of mitigation had been issued after expiration of the strict, sixty day jurisdictional time limitation, the Fourth District invalidated the reduction as void.

The appellant next moved to vacate the judgment pursuant to Fla.R.Cr.P. 3.850, alleging that his life sentence had been imposed to punish him for exercising his constitutional right to a jury trial. After an evidentiary hearing, the motion was denied. Smith's appeal of the denial was dismissed, since he had a contemporaneous appeal pending before the Supreme Court of Florida dealing with the same issues.

Smith later renewed in Circuit Court his motion to vacate the judgment and sentence which, after a hearing, once again was denied. On appeal to the District Court of Appeal, Fifth District, the denial was affirmed. Smith v. State, 382 So.2d 909 (Fla. 5th DCA 1980).

On June 24, 1980, Smith petitioned for a writ of habeas corpus to the United States District Court for the Middle District of Florida. His petition was dismissed by the district judge on January 27, 1981. From that dismissal, Smith brings his present appeal to this court.

II. The Sentencing Process

While the severity of a sentence imposed within statutory bounds will not be reviewed by this court, United States v. Cavazos, 530 F.2d 4 (5th Cir. 1976), alleged impropriety in the sentencing process itself is subject to judicial examination. Herron v. United States, 551 F.2d 62 (5th Cir. 1977); United States v. Hartford, 489 F.2d 652 (5th Cir. 1974).

Florida law provides for the imposition of a maximum sentence of life imprisonment for the commission of second degree murder. Fla.Stat. § 782.04. The appellant nevertheless contends that, had he pled guilty to this crime, he would have received a lighter sentence. Yet, even were this the case, his sentence would remain unassailable. Certainly, the Constitution forbids the exaction of a penalty for a defendant's unsuccessful choice to stand trial. Baker v. United States, 412 F.2d 1069 (5th Cir.), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970). It is well-established, however, that absent a demonstration of judicial vindictiveness or punitive action, a defendant may not complain simply because he received a heavier sentence after trial. Blackmon v. Wainwright, 608 F.2d 183 (5th Cir. 1980). Underlying this firmly entrenched tenet of our criminal justice system is the realization that the expression of remorse by one who acknowledges his violation of the law is often a significant first step towards his rehabilitation and, for that reason, deserving of a possible reward in the form of a lessened sentence. In upholding this policy, the Supreme Court of the United States has stated:

(W)e cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.

A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained.

Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747 (1969).

Thus, Smith's allegation of a possible discrepancy between his actual sentence and that which he would have received had he foregone trial to plead guilty does not invalidate the sentence. Indeed, any such discrepancy remains pure conjecture in the first instance, since there is no indication that any plea negotiations ever were attempted by either the prosecution or the court.

The appellant claims, in addition, that his sentence was tainted by the trial judge's impermissible intent to punish him for electing to go to trial rather than plead guilty. Smith bases his contention on two statements made by the trial judge on occasions subsequent to the original imposition of sentence. The first comment, which was made at a hearing on the appellant's motion for mitigation of sentence, was as follows:

I also know it is the custom among judges to sentence more harshly if you go to trial than if you plead. I am afraid that I have been probably a victim of that same sentencing process. It is not proper and not constitutional. And, I feel that had Mr. Smith entered a plea, discussed it with the Court, he would have been sentenced differently.

Record on Appeal at 36.

The second statement was made during an evidentiary hearing on the appellant's motion to vacate judgment and sentence. While on the witness stand, the trial judge, who by this time had left the bench and was engaged in the practice of law, was asked whether he had punished the appellant for having chosen to stand trial. In response, he remarked:

That is a little more strongly put than I would choose to put it, but, I think I have said it. I think, he suffered as a result of that attitude. I would hate to think that I went so far as to maliciously punish the man because I tried to employ the existing statute to his benefit, but, to that extent, yes, I think he received a heavier sentence for going to trial than he would have if he hadn't gone to trial, which I felt, subsequently felt was a constitutional infringement.

Record on Appeal at 38-39.

A careful reading of the above statements by Judge DeManio reveals their complete failure to support the appellant's claim of judicial...

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24 cases
  • Hitchcock v. Wainwright
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 18, 1984
    ...and that which he would have received had he foregone trial to plead guilty does not invalidate the sentence. Smith v. Wainwright, 664 F.2d 1194, 1197 (11th Cir.1981). That the death penalty is involved in this case does not alter the principle of law. Given the different situations present......
  • Contant v. Sabol
    • United States
    • U.S. District Court — Southern District of New York
    • December 6, 2013
    ...reward in the form of a lessened sentence[.]’ ” United States v. Parker, 903 F.2d 91, 105 (2d Cir.1990) (quoting Smith v. Wainwright, 664 F.2d 1194, 1196 (11th Cir.1991)). ...
  • Hitchcock v. Wainwright
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 28, 1985
    ...and that which he would have received had he foregone trial to plead guilty does not invalidate the sentence. Smith v. Wainwright, 664 F.2d 1194, 1197 (11th Cir.1981). In capital cases particularly, there is no merit to the argument that the sentencing judge should have set forth the reason......
  • Freeland v. Glunt
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • May 30, 2018
    ...738 F.2d 828, 831 (7th Cir. 1984), as the severity of a sentence alone does not provide a basis for habeas relief, Smith v. Wainwright, 664 F.2d 1194 (11th Cir. 1981) (holding that a sentence imposed within the statutory limits can not be attacked in habeas proceeding). Accord United States......
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