Davis v. State, No. 4D17-3955

CourtCourt of Appeal of Florida (US)
Writing for the CourtCaracuzzo, Cheryl, Associate Judge.
Citation268 So.3d 147
Parties Alphonso DAVIS, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 4D17-3955
Decision Date16 January 2019

268 So.3d 147

Alphonso DAVIS, Appellant,
STATE of Florida, Appellee.

No. 4D17-3955

District Court of Appeal of Florida, Fourth District.

[January 16, 2019]

Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.

Caracuzzo, Cheryl, Associate Judge.

After we remanded appellant's case for a de novo resentencing hearing, he appealed his new sentence of 30 years as being vindictive because it was longer than the sentence imposed by the original judge. Since appellant has failed to establish actual vindictiveness on the part of the new sentencing judge, the sentence is affirmed.

Appellant was employed as a teacher and a coach. He had sexual relations with a student, caused her to abort the resulting pregnancy, and then convinced his nephew to falsely claim that the nephew was the father of the victim's child.

A jury found appellant guilty of sexual battery by a person in familial or custodial authority and unlawful sexual activity with a certain minor. He was sentenced to 20 years on Count I, and a concurrent term of 15 years on Count II. Appellant appealed that sentence, and this court per curiam affirmed. Davis v. State , 163 So. 3d 1215 (Fla. 4th DCA 2015).

268 So.3d 149

Thereafter, appellant moved for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing in part, that the scoresheet used at his sentencing improperly contained victim penetration points, even though the jury did not make the requisite findings to support the addition of the points. The state conceded error and the case was remanded for correction of the scoresheet and a new sentencing hearing.

At the resentencing hearing ("Resentencing One"), the original judge stated that the incorrect assessment of penetration points did not change his sentence. The original judge again sentenced appellant to a term of 20 years on Count I, and a concurrent term of 15 years on Count II.

Appellant appealed his sentence a second time. Again, this court reversed the sentence, finding that the trial court erred in failing to hold a de novo resentencing hearing where appellant would have "the opportunity to submit evidence." Davis v. State , 219 So.3d 863, 864 (Fla. 4th DCA 2017).

A second resentencing ("Resentencing Two") hearing was conducted in front of a different judge. That trial judge conducted a de novo sentencing hearing and did not limit either party as to the presentation of any evidence. The judge indicated that the sentence was also based upon a review of the court transcripts, everything provided to him by both the defense and prosecution, and the Pre-Sentence Investigation. At the conclusion of the Resentencing Two hearing, the court sentenced appellant to 30 years on Count I, and a concurrent term of 15 years on Count II. Appellant now appeals this sentence as vindictive.

"[I]mposition of a vindictive sentence is fundamental error that may be raised for the first time on appeal." Mendez v. State , 28 So.3d 948, 950 (Fla. 2d DCA 2010). Therefore, no action was necessary to preserve this argument for appeal.

Whether an increased sentence is vindictive "is a question of law subject to de novo review by this court." Parker...

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