IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
Appeal No. CRC 02-5460 CFANO
Opinion filed _______________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Paul Levine
Maura Kiefer, Esq.
Attorney for appellant
C. Marie King, Esq.
Assistant State Attorney
††††††††††† THIS MATTER is before the Court on the defendantís appeal from a judgment and sentence entered by the Pinellas County Court following a jury trial. The defendant was convicted of DUI and sentenced. The defendant contends that the sentence was improper. After reviewing the briefs and record, this Court affirms in part and reverses in part the sentence.
††††††††††† The defendant claims the trial judge vindictively sentenced her to a harsher sentence than that offered to her prior to trial. The record, however, does not support the defendantís contention. The record shows that prior to trial the defendant was offered a plea bargain of essentially one-yearís house arrest with 90 days in jail plus a one-year driverís license revocation. The defendant, however, rejected that offer and went to trial. Following the juryís guilty verdict, the court sentenced the defendant to one year in jail and a permanent revocation of her driverís license. However, merely because the sentence was harsher than that offered prior to trial does not lead to the conclusion that the sentence was vindictive.
When reviewing any
claim of vindictive sentencing, an appellate court must consider the totality
of the circumstances. It must consider any judicial participation in plea
negotiations, and it must also consider: (1) whether the trial judge initiated
the plea discussions with the defendant; (2) whether or not the trial judge
departed from the role of impartial arbitrator; (3) the disparity between the
plea offer and the sentence; and (4) the lack of facts that would otherwise
explain the increased sentence.
Although the record shows the trial judge stated the offer to the defendant, there is nothing to show that the court itself initiated the plea discussions with the defendant. Similarly, there is nothing in the record to demonstrate that the trial judge departed from the role of impartial arbitrator by encouraging the defendant to accept the plea offer.††††††† There is also not a great disparity between the sentence originally offered and the one ultimately imposed. The first offer was essentially for one year of house arrest with 90 days in jail and a one-year driverís license suspension, and the actual sentence was essentially one year in jail with a permanent driverís license revocation. The difference is really just where the confinement is to take place, and not the amount of the confinement.
the record provides sufficient justification for the increased sentence. The
trial judge believed that he learned more information about the defendant and
her case during the trial. Specifically, he found the defendantís testimony to
be ďabsolutely ludicrous.Ē Such information may be grounds for a harsher
sentence. In the case of Hallmon v. State, 876 So.2d 662 (
††††††††††† The defendant also contends that the sentence was improper because it provided for the permanent revocation of her driverís license. The State concedes that the statutory maximum revocation period for a DUI conviction more than ten years removed from the previous DUI conviction is one year. Therefore, since this is the defendantís first DUI conviction in ten years, that portion of the sentence that permanently revoked the defendantís driverís license is vacated. The case is remanded to the trial court for re-sentencing on the driverís license portion of the sentence.
††††††††††† IT IS THEREFORE ORDERED that the sentence is affirmed in part; that portion of the sentence that imposes a lifetime revocation of the defendantís driverís license is vacated.
††††††††††† IT IS FURTHER ORDERED that the case is remanded for re-sentencing on that portion of the sentence involving the defendantís driverís license.
AND ORDERED in Chambers at
††††††††††† ______________________††††††††††††††††††††††††††† ______________________
††††††††††† ††††††† David A. Demers††††††††††††††††††††††††††††††††††† †††† Robert J. Morris, Jr.
††††††††††† †††††††††† Circuit Judge††††††††††††††††††††††††††††††††††††††† ††††††††††† Circuit Judge
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene S. Sullivan
††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† † †Circuit Judge
cc:†† State Attorney
††††††† Maura Kiefer, Esq.
††††††† Judge Levine