Bernal v. State , 1D11–3018.

Decision Date30 December 2011
Docket NumberNo. 1D11–3018.,1D11–3018.
PartiesJesus Rangel BERNAL, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida 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.


[76 So.3d 1113]

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

[76 So.3d 1114]

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...

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2 cases
  • Kelly v. State
    • United States
    • Florida District Court of Appeals
    • May 5, 2014
    ...law. Therefore, Defendant should be resentenced to a legal sentence that will effectuate the intent of the Court. See Bernal v. State, 76 So.3d 1112 (Fla. 1st DCA 2011) (a Court may restructure a sentence on the counts challenged by a defendant as long as the overall term of the sentence is......
  • Quimi v. State , 5D10–4198.
    • United States
    • Florida District Court of Appeals
    • December 30, 2011
2 books & journal articles
  • Pretrial motions and defenses
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...by resentencing him on those counts. Appellate counsel is ineffective in failing to raise the double jeopardy issue. Bernal v. State, 76 So. 3d 1112 (Fla. 1st DCA 2011) An allegation that counsel was ineffective for failing to move to dismiss a count on double jeopardy grounds (here, convic......
  • Post-conviction relief
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...by resentencing him on those counts. Appellate counsel is ineffective in failing to raise the double jeopardy issue. Bernal v. State, 76 So. 3d 1112 (Fla. 1st DCA 2011) POST-CONVICTION RELIEF 9.3 The Florida Criminal Cases Notebook 9-12 When the appellate court requires the attachment of do......

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