Wemett v. State

• Decision Date: 30 August 1990
• Docket Number: No. 74723,74723
• Citation: 567 So.2d 882
• Parties: 15 Fla. L. Weekly S423 Glen A. WEMETT, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 882

567 So.2d 882

15 Fla. L. Weekly S423

Glen A. WEMETT, Petitioner, v. STATE of Florida, Respondent.

No. 74723.

Supreme Court of Florida.

Aug. 30, 1990.

Rehearing Denied Nov. 1, 1990.

Louis O. Frost, Jr., Public Defender, and James T. Miller, Asst. Public Defender, Jacksonville, for petitioner.

Robert A. Butterworth, Atty. Gen., and Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for respondent.

BARKETT, Justice.

We have for review Wemett v. State, 547 So.2d 955 (Fla. 1st DCA 1989), in which the district court certified the following as a question of great public importance:

Is a life sentence imposed under guidelines sentencing always a harsher sentence than a term of years, regardless of the length of the sentence for a term of years.

Id. at 958. ¹

Glen A. Wemett was convicted in 1983 of two counts of burglary of a dwelling with assault (a first-degree felony punishable by a term of years not exceeding life imprisonment); one count of unarmed robbery (a second-degree felony punishable by a maximum fifteen years' imprisonment); and one count of attempted unarmed robbery (a third-degree felony punishable by a maximum five years' imprisonment). The offenses were committed in April 1983, and the circuit court sentenced Wemett in July 1983, before the sentencing guidelines became effective. The court sentenced Wemett as follows: count one, burglary, 120 years with jurisdiction retained for half; count two, unarmed robbery, fifteen years; count three, burglary, 120 years with jurisdiction retained for half; and count four, attempted robbery, five years. All sentences were consecutive, totaling 260 years.

In 1988, the First District remanded the case for resentencing because the trial court erroneously retained jurisdiction for one-half, rather than one-third, of the sentence. Wemett v. State, 529 So.2d 1288 (Fla. 1st DCA 1988). See § 947.16(3), Fla.Stat. (1981). On remand, the circuit court could have merely corrected the illegal portion of its sentence to comply with section 947.16(3). However, Wemett elected to be resentenced under the guidelines, for which his recommended range was five and one-half to seven years. The circuit court heard no new evidence at the resentencing hearing, relying instead on the record and its recollection of testimony given in the 1983 proceedings. The circuit court then acceded to the state's request to depart from the guidelines and resentenced Wemett to serve two concurrent terms of life imprisonment on the burglary charges, plus consecutive terms of fifteen years for robbery and five years for attempted robbery.

The district court affirmed the departure from the guidelines. But on the authority of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackshear v. State, 531 So.2d 956 (Fla.1988), it reversed the imposition of concurrent life sentences as being a more severe sanction than the combined term of years imposed in the 1983 sentencing. The district court then certified the question now before this Court.

The state argues that the two sentences are roughly equivalent because each was the harshest lawful sentence allowed under the respective sentencing schemes, and that both were designed to achieve a single purpose--to keep Wemett in jail for the rest of his life. Wemett argues that the effect of his original sentence was less harsh than the guidelines life sentences because it would be possible for him to win an early release under the original sentence, whereas he could not under the guidelines life sentences.

It is clear that under the original sentence, Wemett was eligible to earn gain-time, sections 944.275, .291, Florida Statutes (1981), and to be released on parole, section 947.16, Florida Statutes (1981). Although the circuit court retained jurisdiction for a portion of the sentence, it could choose to relinquish jurisdiction, thereby making Wemett eligible to benefit from gain-time or parole. Even if the circuit court were to choose not to relinquish jurisdiction, Wemett would become eligible to benefit from gain-time or parole if he were to survive the period during which the circuit court retained jurisdiction. Thus, it would be possible for Wemett to win an early release under the original sentencing scheme, regardless what his life expectancy may be. See Harmon v. State, 438 So.2d 369, 370-71 (Fla.1983).

The same cannot be said of a guidelines life sentence. Wemett would not be eligible for parole under the guidelines, Stewart v. State, 549 So.2d 171, 175-76 (Fla.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3294, 111 L.Ed.2d 802 (1990); Smith v. State, 537 So.2d 982, 987 (Fla.1989), nor does guidelines sentencing allow Wemett to benefit from gain-time while serving a life sentence.

We find that the two sentences are not functionally equivalent. See also Blackshear, 531 So.2d at 956 (two concurrent guidelines life sentences were more harsh than the trial court's original imposition of two concurrent sixty-five-year sentences). The combined term of years left open the possibility of early release, whereas the guidelines life sentences did not. Wemett's concurrent life sentences under the guidelines had the effect of being more harsh than the combined term of years he received under preguidelines law. Therefore, we answer the certified question in the affirmative under the facts of this case.

Our answer does not end the analysis, however, because we must determine whether the due process considerations expressed in Pearce, 395 U.S. at 711, 89 S.Ct. at 2072, and Blackshear, 531 So.2d at 956, rendered the harsher sentence unconstitutional. ²

In Pearce, a defendant successfully appealed a conviction but was retried and convicted again. After the second trial, the trial judge imposed a sentence more harsh than the one the judge had imposed for the original conviction. The United States Supreme Court held that the harsher sentence violated due process because it evinced vindictiveness against the defendant for having successfully appealed the first conviction and sentence. Pearce, 395 U.S. at 725, 89 S.Ct. at 2080. Pearce and its progeny established "a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982) (footnote omitted). The reasons for imposing a more harsh sentence must rely upon "identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." Pearce, 395 U.S. at 726, 89 S.Ct. at 2081. Of course, there is no need to apply a presumption of vindictiveness if the record contains proof of actual vindictiveness. Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 978-79, 89 L.Ed.2d 104 (1986); Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424 (1984); Goodwin, 457 U.S. at 380-81, 102 S.Ct. at 2492-93.

In cases decided subsequent to Pearce, the United States Supreme Court reasoned that the presumption of vindictiveness does not apply unless there is a " 'realistic likelihood' " of vindictiveness. Goodwin, 457 U.S. at 375, 102 S.Ct. at 2490 (quoting Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974)). The opportunity for vindictiveness must " 'impel the conclusion that due process of law requires a rule analogous to that of the Pearce case.' " Id. (quoting Blackledge, 417 U.S. at 27, 94 S.Ct. at 2102). "[A] mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule." Id. at 384, 102 S.Ct. at 2494. "Accordingly, in each case, we look to the need, under the circumstances, to 'guard against vindictiveness in the resentencing process.' " McCullough, 475 U.S. at 138, 106 S.Ct. at 979 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct. 1977, 1982, 36 L.Ed.2d 714 (1973)).

For example, in Moon v. Maryland, 398 U.S. 319, 90 S.Ct. 1730, 26 L.Ed.2d 262 (1970), the Court said there was no need to apply the presumption when the defendant conceded that vindictiveness played no part in the trial court's decision to enlarge the sentence. In Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), the Court declined to apply the presumption in a two-tier judicial system "whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment." Id. at 105-06, 92 S.Ct. at 1955. The second trial and sentencing were conducted by a different court and judge in "a completely fresh determination of guilt and innocence." Id. at 117, 92 S.Ct. at 1961. The second court was not reviewing errors of the first trial, and may not even have known what sentence was imposed in the first proceeding, so it "can hardly be said to have 'enhanced' the sentence." Id. at 117-18, 92 S.Ct. at 1961 (footnote omitted). In Chaffin v. Stynchcombe, 412 U.S. 17, 25, 93 S.Ct. 1977, 1982, 36 L.Ed.2d 714 (1973), there was no need to apply the presumption of vindictiveness when the jury was the sentencing authority at the second trial, and that jury was unaware of the prior sentence. In McCullough, 475 U.S. at 134, 106 S.Ct. at 976, no presumption of vindictiveness applied when the defendant, who elected to be sentenced by a jury after his first trial, chose to be sentenced by the judge after the retrial. The Court reasoned that the trial judge could not be presumed vindictive because she was the same judge who threw out the first conviction and ordered a new trial on the ground of prosecutorial misconduct. " '[U]nlike the judge who has been reversed,' the trial judge here had 'no motivation to engage in self-vindication.' " Id. at 139, 106 S.Ct. at 979 (quoting Chaffin, 412 U.S. at 27, 93 S.Ct. at 1983). The fact that...