Davis v. State, 5D03-1952.
Decision Date | 05 December 2003 |
Docket Number | No. 5D03-1952.,5D03-1952. |
Citation | 860 So.2d 1058 |
Parties | Tyrone DAVIS, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Tyrone Davis, Lowell, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
Tyrone Davis appeals from the summary denial of his rule 3.850 motion in which he raised nine alleged grounds of ineffective assistance of counsel. We have determined that eight of the grounds are without merit. One, however, in which Mr. Davis alleges that his counsel was ineffective for failing to assure that he was fairly sentenced by objecting to a purportedly vindictive sentence imposed by the trial court, requires reversal and a new sentencing.
Mr. Davis was accused of robbery with a firearm while wearing a mask and of third degree grand theft. Immediately prior to his trial, and while a jury was waiting to be seated, the following colloquy occurred between the appellant, the trial judge (who was not the same judge who denied the rule 3.850 motion), the prosecutor and defense counsel:
Mr. Davis was convicted of both robbery and grand theft, and was sentenced to serve fifteen years in state prison. The only reasons given by the trial judge for imposing the substantially harsher sentence than was offered in exchange for a guilty plea was that the defendant had "thwarted the efforts of the State," apparently by giving inconsistent statements. This court affirmed the robbery conviction, but reversed the grand theft conviction on double jeopardy grounds.1 Mr. Davis was subsequently resentenced by the same judge to serve fifteen years in state prison for the robbery alone. We affirmed the amended judgment and sentencing.2 The issue of whether Mr. Davis was the subject of a vindictive sentence, however, has not been previously considered by this court. In State v. Warner, 762 So.2d 507 (Fla.2000), the supreme court authorized certain judicial participation in the plea bargaining process within rather confined limits. The first restriction placed on trial judges is that they may not initiate the plea dialogue. The second is that the judge may neither state nor imply "alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant's right to trial." Warner, 762 So.2d at 513-514. That is to say, judges must not state or imply that the sentence might vary depending on whether the defendant chooses to exercise his or her right to trial by jury. See also Graff v. State, 843 So.2d 1012 (Fla. 5th DCA 2003). Additionally, the supreme court required that all plea negotiations involving the trial judge be recorded.
The high court readdressed the issue in Wilson v. State, 845 So.2d 142 (Fla.2003). The supreme court there declined to adopt a presumption of vindictiveness to be applied in all cases in which a judge participates in plea negotiations, and instead concluded that a "totality of circumstances" review is more appropriate to determine if a defendant's constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations with the court. Wilson, 845 So.2d at 156. See also Vondervor v. State, 847 So.2d 610 (Fla. 5th DCA 2003)....
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Evans v. State
...in which the failure of counsel to object to a potentially vindictive sentence under rule 3.850 was raised. See, e.g., Davis v. State, 860 So.2d 1058 (Fla. 5th DCA 2003). Likewise, in Bouno v. State, 900 So.2d 672 (Fla. 5th DCA 2005), review denied, 925 So.2d 1029 (Fla. 2006), we held that ......
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Longley v. State, 5D04-1561.
...be the judge's "neutral and impartial role" in the plea bargaining process. In a more recent case decided after Wilson, Davis v. State, 860 So.2d 1058 (Fla. 5th DCA 2003), this court concluded that Davis' due process rights had been violated based on a consideration of the "totality of the ......
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St. Pierre v. State, 2D06-5491.
...things, that his trial counsel was ineffective for failing to object to the imposition of a vindictive sentence. See Davis v. State, 860 So.2d 1058 (Fla. 5th DCA 2003) (holding that allegation of counsel's failure to object to vindictive sentence presents a cognizable claim under rule 3.850......
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White v. State
...for failing to object to a potentially vindictive sentence.1 See Evans v. State, 979 So.2d 383 (Fla. 5th DCA 2008) ; Davis v. State, 860 So.2d 1058 (Fla. 5th DCA 2003). The life sentence imposed in this case—after the judge's offer of a 10–year sentence—gave rise to a presumption of vindict......