Bernal v. State , 1D11–3018.

• Decision Date: 30 December 2011
• Docket Number: No. 1D11–3018.,1D11–3018.
• Citation: 76 So.3d 1112
• Parties: Jesus Rangel BERNAL, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

76 So.3d 1112

Jesus Rangel BERNAL, Petitioner,

v.STATE of Florida, Respondent.

No. 1D11–3018.

District Court of Appeal of Florida, First District.

Dec. 30, 2011.

Jesus Rangel Bernal, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.

PER CURIAM.

Petitioner has filed a timely petition alleging appellate counsel was ineffective for not arguing on appeal that the trial court vindictively imposed consecutive sentences at resentencing in violation of the constitutional prohibition against double jeopardy. We grant the petition in part and deny it in part.

After petitioner entered a nolo contendere plea to three counts of DUI manslaughter (counts I, II, and III) and two counts of DUI with serious bodily injury (counts IV and V), the trial court imposed concurrent sentences of fifty-five years on counts I, II, and III and five years on counts IV and V. During the pendency of his direct appeal, petitioner filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which claimed his fifty-five-year sentences on counts I, II, and III were illegal. The state conceded these sentences exceeded the fifteen-year statutory maximum for DUI manslaughter; noted the plea agreement permitted the court to impose a prison sentence of between 38.5 years (the lowest permissible sentence allowed by the scoresheet) and fifty-five years (the sentencing cap provided in the plea agreement); and requested the court to resentence petitioner to consecutive prison terms of fifteen years on counts I, II, and III and five years on counts IV and V. Petitioner responded the court could not resentence him on counts IV and V without violating the constitutional prohibition against double jeopardy because he was not challenging his sentences on those two counts. The trial court granted petitioner's motion and resentenced him to consecutive prison terms of fifteen years on counts I, II, and III and five years on counts IV and V.

On appeal, petitioner's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This court affirmed without opinion. Bernal v. State, 9 So.3d 748 (Fla. 1st DCA 2009). However, Judge Benton filed a concurring opinion observing that “[t]his case represents at least an arguable issue about whether appellant's resentencing comported with the prohibitions against double jeopardy” and that the affirmance was “without prejudice to appellant's right to seek relief collaterally ... although he may not have the right to be assisted by counsel in doing so.” Id. at 749. This petition follows.

In his petition, petitioner alleges appellate counsel was ineffective for not arguing that the trial court vindictively resentenced him to consecutive prison terms on all counts in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We find this claim to be without merit. Because the overall length of petitioner's imprisonment before and after resentencing remained unchanged at fifty-five years, no presumption of vindictiveness arose under Pearce. See Blackshear v. State, 531 So.2d 956, 958 (Fla.1988) (holding the trial court could restructure the defendant's sentences from concurrent to consecutive under Pearce provided the overall length of the defendant's imprisonment remained the same); Everett v. State, 824 So.2d 211 (Fla. 1st DCA 2002) (same). Accordingly, we deny the petition as to this particular claim.

In addition, petitioner alleges appellate counsel was ineffective for not arguing that the trial court erred in resentencing petitioner to consecutive prison terms on counts IV and V in violation of the constitutional...