Allende v. State, 5D03-2101.
Decision Date | 17 September 2004 |
Docket Number | No. 5D03-2101.,5D03-2101. |
Citation | 882 So.2d 472 |
Parties | Raymond ALLENDE, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Ricardo R. Pesquera, Orlando, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
In this direct appeal, Raymond Allende argues that the twenty-five-year sentence imposed by the trial judge following his conviction of trafficking in cocaine in excess of 200 grams1 was vindictive. He contends that the trial judge punished him with an enhanced sentence for proceeding to trial, rather than accepting the State's plea offer of seven years in prison.
Allende failed to raise this issue in the trial court as required by Florida Rule of Criminal Procedure 3.800(b). Consequently, he cannot raise it for the first time on direct appeal. While conceding that the issue was not preserved in the trial court, Allende contends that a vindictive sentence constitutes fundamental error that can be raised for the first time on appeal. We disagree. "[F]or defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2)[2], the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal." Brannon v. State, 850 So.2d 452, 456 (Fla.2003).
Our supreme court made clear in Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015 (Fla.2000) (hereafter Amendments II), that Rule 3.800(b) must be used to preserve both fundamental and non-fundamental sentencing errors.
[T]he amended rule is intended to provide one mechanism whereby all sentencing errors may be preserved for appellate review.... The amendment to rule 3.800(a) will make it clear that a rule 3.800(b) motion can be used to correct any type of sentencing error, whether we had formerly called that error erroneous, unlawful or illegal.
Brannon, 850 So.2d at 458-59 (quoting Amendments II, 761 So.2d at 1019) (emphasis supplied).
Our conclusion that Allende's alleged sentencing error must first be presented below is buttressed by Florida Rule of Appellate Procedure 9.140(e), which provides:
A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentence; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).
Because Allende failed to preserve the issue for appellate review, we affirm.3
AFFIRMED.
I agree that Allende's claim of a vindictive sentence must fail on direct appeal because of his failure to raise the issue in the trial court as required by Florida Rule of Criminal Procedure 3.800(b). Nevertheless, the following exchange between the trial judge and Allende just prior to trial suggests to me that Allende's claim, although procedurally barred, has merit:
(emphasis added).
Following a trial on largely uncontroverted facts, Allende was found guilty and sentenced to twenty-five years in prison. He now contends that his sentence was the result of judicial vindictiveness.
It is axiomatic that a judge must neither state, nor imply "alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant's right to trial." State v. Warner, 762 So.2d 507, 513-14 (Fla.2000). Judges must scrupulously avoid suggesting in any way that a defendant's sentence might vary depending on whether the defendant chooses to exercise his or her right to a trial. Hornbuckle v. State, 864 So.2d 1203, 1204 (Fla. 5th DCA 2004). As the supreme court has observed, "[a]ny judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional." City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985) (quoting Gillman v. State, 373 So.2d 935, 938 (Fla. 2d DCA 1979)); see United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)
. As a consequence, although a guilty plea may justify leniency, see Alabama v. Smith, 490 U.S. 794, 802, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), an "accused may not be subjected to more severe punishment for exercising ... [the] constitutional right to stand trial." Mitchell v. State, 521 So.2d 185, 187 (Fla. 4th DCA 1988); see Wilson v. State, 845 So.2d 142, 150 (Fla.2003).
In this case, I believe that the trial judge's comments were heavy handed at best, and...
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Evans v. State
...response by the State to this court's order to show cause was of little benefit. It suggests, among other things, that Allende v. State, 882 So.2d 472 (Fla. 5th DCA 2004), supports its position that Mr. Evans was required to seek rule 3.800 relief before he could show prejudice from his cou......
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Jackson v. State
...not be considered on appeal. The Fifth District reached the same conclusion regarding a vindictive sentencing claim in Allende v. State, 882 So.2d 472 (Fla. 5th DCA 2004). See also Summerlin v. State, 901 So.2d 997 (Fla. 2d DCA 2005) (holding that a claim that a defendant was improperly sen......
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Rosado v. State
...3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.” In Allende v. State, 882 So.2d 472, 473 (Fla. 5th DCA 2004), this Court held that to preserve a claim of vindictive sentencing, the defendant must either lodge a contemporaneous ......
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Creed v. Department of Corrections, No. 08-12671 (11th Cir. 5/12/2009)
...was vindictive must be raised in the trial court and cannot be raised for the first time even on direct appeal. Allende v. State, 882 So. 2d 472, 473 (Fla. 5th DCA 2004) ("While conceding that the issue was not preserved in the trial court, Allende contends that a vindictive sentence consti......