Richardson v. State, 5D01-1026.

CourtCourt of Appeal of Florida (US)
Citation821 So.2d 428
Docket NumberNo. 5D01-1026.,5D01-1026.
PartiesJohnny RICHARDSON, Appellant, v. STATE of Florida, Appellee.
Decision Date19 July 2002

821 So.2d 428

Johnny RICHARDSON, Appellant,
STATE of Florida, Appellee

No. 5D01-1026.

District Court of Appeal of Florida, Fifth District.

July 19, 2002.

821 So.2d 429
James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant

Robert A. Butterworth, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.


Johnny Richardson appeals his sentences, arguing that the trial court erred by denying his motion to withdraw his pleas and that the sentences imposed were vindictive. We affirm in part, reverse in part, and remand for further proceedings.

In 1990, Richardson was charged with three felonies, and after entering no contest pleas, was sentenced to concurrent terms of ten years in prison followed by five years of probation. In 1992, Richardson was charged with an additional felony, and after pleading no contest, was sentenced to twelve years in prison followed by three years probation to run concurrent with his 1990 sentences. After being released from prison, Richardson violated his probation. At his violation hearing, Judge R. James Stroker, the trial judge then assigned to Richardson's cases, accepted Richardson's admission to the probation violations and, pursuant to a plea agreement with the State, indicated his intention to sentence Richardson to an additional two and one-half years in prison after consideration of Richardson's accrued credit for time served and good and gain time. To effectuate that intention, Judge Stroker sentenced Richardson to an aggregate of fourteen and one-half years in prison with credit for twelve years, and one hundred sixty-five days. However, Judge Stroker's sentencing plan was foiled when the Department of Corrections (DOC) forfeited Richardson's good and gain time when he returned to prison.

Richardson then filed a motion for post-conviction relief pursuant to Florida Rule Criminal Procedure 3.850, alleging that on the advice of counsel, he accepted the plea agreement based on the representation that he would only serve an additional two and one-half years in prison. However, because DOC forfeited his good and gain time, he was being required to serve an

821 So.2d 430
additional five years. After an evidentiary hearing, Richardson's 3.850 motion was granted and he was allowed to withdraw his plea. Thereafter, at a new hearing before Judge Stroker, Richardson again admitted violating his probation and entered open pleas before the court

Before sentencing occurred, Richardson, now represented by a new attorney, filed a motion to withdraw his admission to the violations of probation. Richardson's motion asserted that he was not advised that he could be committed under section 916.31, Florida Statutes (1999) (the "Jimmy Ryce Act"),1 after his prison term expired. After an evidentiary hearing, the trial court denied Richardson's motion based primarily on the testimony of Richardson's prior attorney that...

To continue reading

Request your trial
10 cases
  • Turner v. Sec'y, Fla. Dep't of Corr.
    • United States
    • U.S. District Court — Middle District of Florida
    • 27 de agosto de 2020
    ...actual vindictiveness is on [the defendant]." Allende v. State, 942 So. 2d 950, 951 (Fla. 5th DCA 2006) (citing Richardson v. State, 821 So. 2d 428, 430 (Fla. 5th DCA 2002)).In the instant case as to Ground Five, Defendant has failed to fulfill his burden of showing the trial judge punished......
  • Rodriguez v. State, 3D04-1277.
    • United States
    • Florida Supreme Court
    • 21 de dezembro de 2005
    ...increased sentence after correction. See Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986); cf. Richardson v. State, 821 So.2d 428 (Fla. 5th DCA 2002). That this is the proper resolution of the problem is shown by the fact that it has been consistently applied in cases......
  • Sands v. State, 5D03-3082.
    • United States
    • Florida District Court of Appeals
    • 15 de abril de 2005
    ...conduct" on the defendant's part, other than the filing of the motion, that warrants the harsher sentence. See Richardson v. State, 821 So.2d 428, 431 (Fla. 5th DCA 2002); see also Blackshear v. State, 531 So.2d 956 (Fla.1988); Everett v. State, 824 So.2d 211 (Fla. 1st DCA 2002); see genera......
  • James v. State, 4D02-1885.
    • United States
    • Florida District Court of Appeals
    • 24 de março de 2004 changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.'" Richardson v. State, 821 So.2d 428, 431 (Fla. 5th DCA 2002)(quoting Buchanan v. State, 781 So.2d 449, 450 (Fla. 5th DCA 2001)). We note that in cases where the defendant has filed......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT