Regueiro v. State
| Court | Court of Appeal of Florida (US) |
| Citation | 619 So.2d 463 |
| Docket Number | No. 92-2210,92-2210 |
| Parties | 18 Fla. L. Week. D1407 Manuel REGUEIRO, Appellant, v. STATE of Florida, Appellee. |
| Decision Date | 09 June 1993 |
Page 463
v.
STATE of Florida, Appellee.
Fourth District.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Melynda L. Melear, Asst. Atty. Gen., West Palm Beach, for appellee.
HERSEY, Judge.
This appeal arises from an order entered in a resentencing proceeding following remand from an earlier appeal.
Appellant Manuel Regueiro was convicted of second degree murder with a firearm, aggravated assault and attempted shooting
Page 464
into a building. Those convictions were affirmed, although the corresponding sentences were reversed with this court noting that the trial court had the option of sentencing appellant as an adult since he had been indicted for certain offenses and convicted of lesser included offenses. See Regueiro v. State, 596 So.2d 175 (Fla. 4th DCA 1992).Originally appellant was sentenced on count I, twenty-two years in prison with a three year minimum mandatory for the firearm; and on counts II & III, 5 years in prison each to run concurrent with each other and with count I. On remand the trial court resentenced appellant as follows: count I, twenty-two years in prison with five of those years stayed and another five years on probation following the completion of the seventeen years in prison; count II, five years probation to run consecutive to the sentences on counts I and III; and count III, five years probation to run consecutive to the sentences on counts I and II.
Appellant asserts that his resentence of two consecutive terms of five years of probation after his prison sentence of seventeen years is an enhancement of his original total sentence and thus is a violation of due process and double jeopardy. Accordingly, the first question on appeal is whether the resentence of seventeen years in prison with fifteen years of consecutive terms of probation is an enhancement of the original sentence of twenty-two years in prison with two concurrent five-year prison terms concurrent with the twenty-two year term.
Appellant is correct in his first assertion that once a person begins serving a lawfully imposed sentence, he cannot be resentenced for an increased term of incarceration on the same facts. E.g., Ruffin v. State, 589 So.2d 403, 404 (Fla. 5th DCA 1991); Donald v. State, 562 So.2d 792 (Fla. 1st DCA 1990), rev. denied, 576 So.2d 291 (Fla.1991); Royal v. State, 389 So.2d 696 (Fla.2d DCA 1980). Appellant also cites North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), modified, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), to support his contention that a defendant may not be resentenced to a harsher sentence upon remand simply because he exercised his right to appeal and have his conviction set aside.
In Pearce, the Supreme Court held that due process rights may be violated where a defendant's resentence upon remand is harsher than the original sentence imposed. 395 U.S. at 723-26, 89 S.Ct. at 2079-81. The purpose behind that holding in Pearce was the Court's concern with a trial court acting out of vindictiveness towards the defendant simply because he sought to have the conviction and sentence overruled. 395 U.S. at 724-26, 89 S.Ct. at 2080-81.
In determining whether Pearce applies to a case, a court should look to (1) the resentence and whether it was enhanced after a successful appeal, and if so, (2) whether the enhancement was motivated by actual vindictiveness toward the defendant because of the appeal. Id. It has been held that Pearce does not apply in every case where a convicted defendant receives a harsher resentence upon retrial. See, e.g., Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 2204-06, 104 L.Ed.2d 865 (1989) (no presumption of vindictiveness arises where sentence imposed after trial was greater than that previously imposed after guilty plea); Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 979, 89 L.Ed.2d 104 (1986) (Pearce sought to prevent the vindictiveness of a sentencing judge and not the imposition of enlarged sentence after a new trial); United States v. Pimienta-Redondo, 874 F.2d 9, 12-14 (1st Cir.). (Pearce presumption arises only in cases where there is a reasonable actual likelihood that vindictiveness exists), cert. denied, 493 U.S. 890, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989).
In a case similar to the instant one, Wood v. State, 582 So.2d 751 (Fla. 5th DCA 1991), the defendant appealed his resentence on the ground that the trial court improperly increased it upon remand. Initially, Wood was sentenced to fifteen years in prison with a three-year minimum mandatory for count I to be followed by ten
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Hughes v. State, 95-0822
...portion of a split sentence (a combination of state prison and probation) may not exceed the guidelines maximum. See Regueiro v. State, 619 So.2d 463, 466 (Fla. 4th DCA 1993); Mitchell v. State, 573 So.2d 446 (Fla. 2d DCA 1991). By contrast, the aggregate of a split sentence of incarceratio......
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Somerville v. State, 92-1131
...he exercised his right to appeal. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Requeiro v. State, 619 So.2d 463 (Fla. 4th DCA 1993). The United States Supreme Court in Pearce and its progeny established a "presumption of vindictiveness," which may be overcom......
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James v. State, No. 1D00-1891
...who successfully had a conviction and sentence overturned. See id., 395 U.S. at 724-26, 89 S.Ct. 2072; see also Regueiro v. State, 619 So.2d 463, 464 (Fla. 4th DCA 1993). That concern, however, does not arise from the new sentence under review here. As a prerequisite to demonstrating that a......
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Washington v. State, 94-1271
...twelve years, which was the original term of incarceration imposed. See Morganti v. State, 573 So.2d 820 (Fla.1991); Regueiro v. State, 619 So.2d 463 (Fla. 4th DCA 1993). Because we reject the state's alternative suggestion of allowing, on remand, appellant to withdraw his plea, as we did i......