Blackshear v. State

• Decision Date: 29 September 1988
• Docket Number: No. 71440,71440
• Citation: Blackshear v. State, 531 So.2d 956, 13 Fla. L. Weekly 586 (Fla. 1988)
• Parties: 13 Fla. L. Weekly 586 Randall Scott BLACKSHEAR, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 956

531 So.2d 956

13 Fla. L. Weekly 586

Randall Scott BLACKSHEAR, Petitioner, v. STATE of Florida, Respondent.

No. 71440.

Supreme Court of Florida.

Sept. 29, 1988.

Michael E. Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen. and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for respondent.

GRIMES, Justice.

We agreed to review Blackshear v. State, 513 So.2d 174 (Fla. 1st DCA 1987), because of apparent conflict with Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982). Our jurisdiction is predicated on article V, section 3(b)(3), Florida Constitution.

This case involves an application of the principle of North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656 (1969), in which the United States Supreme Court said:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

(Footnote omitted.)

With this rationale in mind, we now turn to the instant case. Randall Scott Blackshear pled guilty to charges of armed sexual battery and armed kidnapping and received two concurrent sixty-five-year sentences. Both crimes were life felonies which were punishable by either life imprisonment or a term of years not exceeding forty years. § 775.082(3)(a), Fla.Stat. (1983). On appeal, Blackshear's sentences were reversed and his case remanded for resentencing because the sentencing judge had exceeded the forty-year maximum by twenty-five years. Blackshear v. State, 480 So.2d 207 (Fla. 1st DCA 1985). At Blackshear's resentencing, the recommended guidelines range was twelve to seventeen years. The trial judge instead departed from the guidelines and imposed two concurrent life sentences. In the case under review, the district court of appeal held that one of the two reasons for departure was invalid. Because the appellate court was unable to conclude that the same sentence would have been given in the absence of the invalid reason, the case was remanded once again for resentencing.

The district court of appeal also concluded that the principle of North Carolina v. Pearce would not preclude a resentencing to two concurrent life sentences. While recognizing...