County Criminal Court: CRIMINAL LAW Ė Sentencing. Sentence was not vindictive where the trial judge was not involved in plea negotiations and the defendant could not prove actual vindictiveness. Sentence affirmed. Truncer v. State, No. CRC 05-41 APANO, (Fla. 6th Cir.App.Ct. Feb. 20, 2006).







††††††††††† Appellant,


v.                                                                                                                                                                   Appeal No. CRC 05-41 APANO

†††† UCN522005AP000041XXXXCR



††††††††††† Appellee.



Opinion filed __________________.


Appeal from a sentence imposed

by the Pinellas County Court

County Judge Thomas Freeman


Roger Futerman, Esq.

Attorney for appellant


Robert J. Surette, Esq.

Assistant City Attorney

Attorney for appellee


††††††††††† (J. Demers)


††††††††††† THIS MATTER is before the Court on Brian Truncerís appeal from a sentence imposed by the Pinellas County Court. After reviewing the briefs and record, this Court affirms the sentence.

††††††††††† The defendant was charged with DUI, he also had two related traffic charges that were tried by the trial court. He went to trial and was acquitted of the DUI charge. The trial court acquitted him of one of the traffic charges, but convicted him on the other traffic charge (speeding). The trial court adjudicated him guilty and imposed a sentence of a $500 fine and a one year revocation of his driverís license, consecutive to the one year driverís license suspension he received for refusing to take a breath test. The defendant is appealing that sentence, claiming it was vindictive.

The defendant argues that the trial court just disagreed with the juryís verdict on the DUI charge and gave him an unusually harsh sentence to compensate for the acquittal. In support of his argument, the defendant points out that the sentence is much more than the State sought (the State requested an adjudication of guilt and a $145 fine) and was much harsher than a sentence typically meted out for a speeding offense. The defendant also points to the trial court mentioning in support of its sentence, the fact that the defendant was drinking alcohol. The defendant claims this proved the trial court believed the defendant should be punished for drinking regardless of whether he was impaired or not. In addition, the defendant also claims the trial court was wrong when it claimed the defendant had a bad driving record.

††††††††††† Both parties acknowledge the trial court was not involved in plea discussions; therefore, pursuant to Richardson v. State, 704 So.2d 681 (Fla. 1st DCA 1997), the defendant has the high burden of proving actual vindictiveness on the part of the trial court. This Courtís review of the record does not support a finding of actual vindictiveness. Therefore, the sentence must be affirmed. †††††††† †††††††††††

In addition, although the sentence was harsh for a speeding ticket, there were other factors involved. The trial court noted that the defendant was going 58 mph in a 40 mph zone; the zone was located in a heavily trafficked area; and the defendant was driving a large truck. The court also noted the defendant admitted drinking. Moreover, the defendantís driving record was bad. The defendant in his brief claims that: ďhe only had three prior speeding tickets.Ē This statement is, however, disingenuous. A review of the defendantís driving record reveals that he had numerous other driving convictions --- in addition to his three prior speeding tickets (which also included convictions for going 101 mph; 86 mph in a 55 mph zone; and 80 mph in a 45 mph zone). He had a convictions for careless driving and driving too fast for the conditions on Sept. 16, 1996, operating a motor vehicle in an unsafe condition on May 7, 1999, failing to use due care on April 27, 2000, driving too fast for conditions on August 5, 2002, and failing to obey a traffic control device on April 14, 2004. There were also convictions for driving while his license was suspended or revoked, as well as other non-moving violations. These factors combine to elevate the offense from a run-of-the-mill speeding infraction to one justifying more significant consequences.

††††††††††† IT IS THEREFORE ORDERED that the sentence is affirmed.

††††††††††† DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of February, 2006.

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† ___________________________

††††††††††††††††††††††††††††††††††††††††††††††† ††††††††††††††††††††††††††††††††††††††††††††††† David A. Demers

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



††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Robert J. Morris, Jr.

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



††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† _____________________________

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Irene H. Sullivan

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

cc:††††††† Roger Futerman, Esq.


††††††††††† Robert Surette, Esq.


††††††††††† Judge Freeman