County Criminal Court: CRIMINAL LAW Ė Sentencing Ė Merely because the sentence was harsher than that offered by the State prior to trial does not make it vindictive. There was no judicial participation in the plea negotiations and the record provided sufficient justification for the increased sentence. However, the State conceded that the driverís license revocation was improper. -Sentence affirmed in part. Dalzell v. State, No. CRC 02-5460 APANO (Fla. 6th Cir. App. Ct. Jan. 5, 2005).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

CHRISTINE DALZELL

 

††††††††††† Appellant,

Appeal No. CRC 02-5460 CFANO

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† UCN522002CT05460XXXXX

v.

 

STATE OF FLORIDA

 

††††††††††† Appellee.

________________________/

 

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

 

ORDER AND OPINION

 

††††††††††† (J.Sullivan)

 

††††††††††† 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. Wilson v. State, 845 So.2d 142 (Fla. 2003).

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.

†††††††††† Moreover, 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 (Fla. 4th DCA 2004), the trial court imposed a greater sentence than that offered prior to trial. But the trial court, like the court in the case at bar, provided an explanation for the sentence finally imposed. The trial court relied in significant part, upon matters which occurred during trial, including both testimony and demeanor, adding ď[f]rankly, the things that I heard during the course of the trial stunned this court.Ē The appellate court affirmed the sentence, ruling that there was nothing in the record to question the trial courtís statement. The court held that under the totality of the circumstances the sentence was not vindictive. Similarly, this Court holds that under the totality of the circumstances the sentence was not vindictive.

††††††††††† 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.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of January, 2005.

 

††††††††††† ______________________††††††††††††††††††††††††††† ______________________

††††††††††† ††††††† David A. Demers††††††††††††††††††††††††††††††††††† †††† Robert J. Morris, Jr.

††††††††††† †††††††††† Circuit Judge††††††††††††††††††††††††††††††††††††††† ††††††††††† Circuit Judge

 

 

 

††††††††††††††††††††††††††††††††††††††††††††††† ____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene S. Sullivan

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† † †Circuit Judge

cc:†† State Attorney

 

††††††† Maura Kiefer, Esq.

 

††††††† Judge Levine