Alexander v. State, 81-1448
| Decision Date | 01 September 1982 |
| Docket Number | No. 81-1448,81-1448 |
| Citation | 422 So.2d 25 |
| Parties | Austin Lee ALEXANDER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
Austin Lee Alexander appeals a resentence order, severer than the original sentence order, which he contends deprives him of liberty without due process of law because the judge failed to adhere to a strict resentencing requirement established by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We affirm because 1) Pearce is inapplicable; and 2) the reasons enunciated by the judge for the harsher sentence indicate that the order does not violate appellant's right to due process.
In 1980, a trial judge sentenced appellant on an aggravated battery conviction 1 to a "true" split sentence of five years imprisonment to be followed by five years probation. In 1981, appellant, relying on the retroactive effect of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), filed a Rule 3.850 motion to vacate or correct the illegal sentence. A different trial judge, however, summarily denied the motion. Undaunted, appellant filed another Rule 3.850 motion and appealed to this court from the denial of the original motion. In Alexander v. State, 402 So.2d 485 (Fla. 2d DCA 1981), we remanded to the trial court for a correction of the sentence with instructions that it could resentence him to a prison term not to exceed the original, combined ten-year term of incarceration and probation, with credit for time served. See Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981).
Before we had rendered the above decision on appellant's first appeal, the judge who had originally sentenced appellant conducted a hearing on the second Rule 3.850 motion. At the hearing he indicated to him that he agreed that the motion should be granted but advised him that if he granted it he intended to resentence him to seven and one-half years imprisonment. He explained to him that a prison term shorter than seven and one-half years would be "too lenient" since the victim of the battery had been badly cut and the elimination of the probation portion of the original sentence would nullify a probation condition that he pay the victim's medical bills, which exceeded five thousand dollars. Nevertheless, appellant stated that he wished to proceed with the motion. The judge thereupon granted the motion and vacated the illegal sentence. However, before he could pronounce a new sentence, appellant's attorney reminded him of Pearce.
In Pearce, the respondent had been tried, convicted and sentenced to a term in prison. After the reversal of his conviction several years later, he was retried, reconvicted and resentenced to a prison term which, when added to the time he had already spent in prison, exceeded the term of the original sentence. The sentencing judge justified this harsher sentence solely on the ground that it was within the state's power. The United States Supreme Court ruled that a judge who imposes a harsher sentence after a defendant has been retried and reconvicted must affirmatively state his reasons for doing so. Those reasons, it emphasized, must be based upon objective facts concerning identifiable conduct on the defendant's part which occurred after the original sentencing proceeding. It added that imposing a severer sentence merely because it is within the state's power will not suffice. Since the sentencing judge had refused to specify to the federal district court his reasons for imposing the severer sentence, the Court reversed the respondent's sentence.
Appellant and the judge then engaged in the following conversation at the hearing:
I think you know, and everybody in this room knows, that I'm a county judge, elected as such. I sit as circuit judge only on appointment from my chief judge, and I sit as circuit judge rather seldom. And it is even more seldom that it becomes my duty to impose sentence in a criminal case. Therefore, when I do impose a sentence in a criminal case, I give it a lot of thought.
And in your case, I gave it a lot of thought. The sentence that I imposed I thought was fair. I thought it was fair to you, I thought it was fair to society, and I thought it was at least close to being fair to the man that you stabbed.
MR. ALEXANDER. Yes, sir.
THE COURT: You could have received fifteen years in the state prison. Your record would have justified fifteen years in the state prison, but I didn't give you that. I gave you five years in the state prison. I followed that up with a period of probation because I wanted to give you the opportunity to prove to society that you were not the sort of person that could--that needed to be in prison.
MR. ALEXANDER. Yes, sir.
Though without jurisdiction because of the pending appeal, the judge then rendered what he believed to be a valid order, sentencing appellant with credit to seven and one-half years incarceration. Following his appeal from this invalid order, we temporarily relinquished jurisdiction and the judge entered a valid nunc pro tunc order sentencing him with credit to seven and one-half years imprisonment.
Appellant concedes on amended appeal that the severer sentence complies with a resentencing option provided for in Villery, 396 So.2d at 1112. See also Lewis, 402 So.2d at 485. However, he argues that the implementation of this resentencing option violated his right to due process because the judge failed to point to objective facts concerning identifiable conduct on his part which occurred subsequent to the original sentencing proceeding. Interestingly, he does not contend that the severer sentence resulted from a retaliatory motivation on the judge's part. Stated appellant's counsel in the brief:
Appellant's sentence violates Pearce because he is unarguably "worse off" than before ... This is not to say that Judge Maloney's sentence was motivated by vindictiveness or ill will against Appellant, but it is nonetheless an illegal sentence. (Emphasis added) Appellant's Brief at 8-9.
We are troubled that appellant exalts form (the requirement that the judge state reasons for a severer sentence) over substance (a vindictive motivation on the judge's part). The Court in Pearce never held that a harsher sentence constitutes a per se violation of due process. It stressed that two purposes underlie the strict resentencing requirement: first, to ensure the absence of a retaliatory motivation on the judge's part after the defendant has successfully challenged a conviction; and, second, to free a defendant from the apprehension that a sentencing judge may impose a harsher sentence if he exercises the right to appeal or collaterally attack a conviction. Pearce, 395 U.S. at 727, 89 S.Ct. at 2089. See Michigan v. Payne, 412 U.S. 47, 51-52, 93 S.Ct. 1966, 1968-69, 36 L.Ed.2d 736 (1973). Explained the Court in Chaffin v. Stynchcombe, 412 U.S. 17, 25, 29, 93 S.Ct. 1977, 1982, 1984, 36 L.Ed.2d 714 (1973);
[Pearce ] ... was premised on the apparent need to guard against vindictiveness in the resentencing process. Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process.
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