Ducksworth v. State

• Decision Date: 20 January 2010
• Docket Number: No. 3D08-3289.,3D08-3289.
• Citation: 26 So.3d 74
• Parties: Jerry Lavone DUCKSWORTH, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

26 So.3d 74

Jerry Lavone DUCKSWORTH, Appellant, v. The STATE of Florida, Appellee.

No. 3D08-3289.

District Court of Appeal of Florida, Third District.

January 20, 2010.

Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.

ROTHENBERG, J.

The defendant, Jerry Lavone Ducksworth, appeals his life sentence, arguing that the trial court imposed a vindictive sentence. We affirm.

In 1999, the defendant was charged with one count of robbery with a deadly weapon and one count of aggravated assault. At the time of the charged offenses, the defendant was on probation, and therefore, the State filed an affidavit of probation violation, seeking to revoke the defendant's probation.

At a pretrial hearing conducted on October 2, 2000, the State informed the trial court that the defendant scored eleven to nineteen years on the violation of probation, and that he qualified for enhanced sentencing in the new case as a habitual offender and prison releasee reoffender, and possibly as a habitual violent offender. The State then informed the trial court that it "had a standing offer of 20 years as a habitual offender to close all the matters, which I think is reasonable." In response, the trial court stated, "I agree." Defense counsel rejected the offer on the defendant's behalf. Thereafter, the trial court, without further discussion regarding the State's plea offer, granted a joint continuance.

In February 2001, the defendant's trial resulted in a hung jury and mistrial. While the jury was deliberating, however, the trial court conducted a probation violation hearing. The trial court found that the defendant violated his probation and sentenced him to 9.9 years.

The defendant was retried in May 2001. The jury found the defendant guilty of robbery with a weapon, as a lesser included offense of robbery with a deadly weapon. Thereafter, the trial court sentenced the defendant to life in prison as a habitual violent felony offender and concurrent thirty-year minimum mandatory sentences as a prison releasee reoffender and three-time violent felony offender. In sentencing the defendant, the trial court stated: "It is obvious to this court that sentencing Mr. Ducksworth to the maximum possible sentence is necessary for the protection of society."

This Court affirmed the defendant's conviction, life sentence as a habitual violent felony offender, and thirty-year minimum mandatory sentence as a prison releasee reoffender, but struck the thirty-year minimum mandatory sentence as a three-time violent felony offender. Ducksworth v. State, 834 So.2d 951, 952 (Fla. 3d DCA 2003). Several years later, this Court granted the defendant a belated appeal on the claim of vindictive sentencing. Ducksworth v. State, 998 So.2d 614 (Fla. 3d DCA 2008), which is the subject of the present appeal.

The defendant contends that, based on the totality of the circumstances, the trial judge imposed a presumptively vindictive sentence. We disagree.

In Wilson v. State, 845 So.2d 142, 156 (Fla.2003), the Florida Supreme Court set forth the applicable standard when determining whether the defendant's due process rights were violated by "the imposition of an increased sentence after unsuccessful plea discussions in which the trial judge participated." (emphasis added). As further explained in Wilson:

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in...