Bernal v. State
2011 Fla. App. LEXIS 20905
| Fla. Dist. Ct. App. | 2011Background
- Petitioner pled nolo contendere to three counts of DUI manslaughter (I–III) and two counts of DUI with serious bodily injury (IV–V).
- Trial court sentenced concurrently 55 years for counts I–III and 5 years for counts IV–V.
- During direct appeal, petitioner moved under Florida Rule of Criminal Procedure 3.800(b)(2) to correct sentencing error, contending 55-year I–III sentences exceeded the statutory maximum.
- State conceded the 55-year sentences exceeded the 15-year maximum and proposed resentencing to 15 years on counts I–III and 5 years on counts IV–V.
- Trial court resentenced to 15 years on counts I–III and 5 years on counts IV–V; appellate counsel pursued an Anders brief on appeal.
- Judge Benton authored a concurrence noting arguable double-jeopardy issue if resentencing was improper; this petition follows.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pearce vindictiveness applies to resentence on all counts. | petitioner argues vindictiveness due to resentencing. | State/Defense position not fully stated here; court addresses the claim. | No presumption of vindictiveness; total imprisonment remained 55 years; claim rejected. |
| Whether appellate counsel was ineffective for not challenging double jeopardy on counts IV–V. | appellate counsel failed to raise IV–V double jeopardy issue. | trial court’s modification of IV–V was improper after pleading challenge focused on I–III. | Granted in part; remanded to reinstate original concurrent sentences on IV–V; ineffective-assistance established for that aspect. |
Key Cases Cited
- Blackshear v. State, 531 So.2d 956 (Fla.1988) (restructuring sentences under Pearce permissible if total imprisonment unchanged)
- Everett v. State, 824 So.2d 211 (Fla.1st DCA 2002) (restructuring concurrent to consecutive permissible if overall term unchanged)
- Delemos v. State, 969 So.2d 544 (Fla.2d DCA 2007) (double jeopardy precludes modifying unchallenged sentences)
- Pitts v. State, 935 So.2d 634 (Fla.2d DCA 2006) (double jeopardy considerations in resentencing contexts)
- Kenny v. State, 916 So.2d 38 (Fla.4th DCA 2005) (double jeopardy limitations in post-plea resentencing)
- Seago v. State, 627 So.2d 1316 (Fla.2d DCA 1993) (preclusive effect of finality on resentencing under double jeopardy)