Blackshear v. StateBlackshear v. State
We agreed to review Blackshear v. State, 513 So.2d 174 (Fla. 1st DCA 1987), because of apparent conflict with Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982). Our jurisdiction is predicated on
This case involves an application of the principle of North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656 (1969), in which the United States Supreme Court said:
Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter а defendant‘s exercise of the right to appeal or collaterally attack his first conviсtion, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more sеvere sentence upon a defendant after a new trial, the reasons for his doing so must affirmativеly appear. Those reasons must be based upon objective information concerning idеntifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must bе made part of the record, so that the constitutional legitimacy of the increased sentеnce may be fully reviewed on appeal.
(Footnote omitted.)
With this rationale in mind, we now turn to the instant case. Randаll Scott Blackshear pled guilty to charges of armed sexual battery and armed kidnapping and received
The district court of appeal also сoncluded that the principle of North Carolina v. Pearce would not preclude a resentencing to two concurrent life sentences. While recognizing that Blackshear was guilty of no new misconduct which would justify a greater sentence than was originally imposed, the court pointed out that because the original sentence was illegal, it could not be reimposed. Thus, the court concluded that when faced with the alternative of resentencing Blackshear to either a term of up to forty years or to life imprisonment, the judge could legally choose to impose the harsher penalty.
Even if we were to accept the contention that the judge would not be precluded from opting for the lоnger sentence when the only other legal sentence was shorter than the original sentencе, it would not apply to the facts of this case because of the existence of the concurrent sentences. In Herring v. State, the defendant was convicted of fifteen counts of second-degree grand theft and received concurrent sentences of ten years on each conviction. The Third District Court of Appeal vacated the sentences because the maximum sentence for each crime was only five years. However, the court stated that the trial judge was at liberty to accomplish his sentencing goal that the defendant be sentenced to ten years by imposing consecutive sentences. The court cautioned that any sentence longer than ten years would have to meet the requirements of North Carolina v. Pearce.
It is evident that the trial judge‘s sentencing goal for Blackshear was a prison term of sixty-five years. Applying the rationale of Herring, this could be accomplished by imposing consecutive sentences in which the total number of years would not exceed sixty-five. The judiсial vindictiveness of which North Carolina v. Pearce was concerned would never come into play.
Thus, we conclude that upon remand the trial judge cannot sentence Blackshear to more than sixty-five years in prison in the absence of an intervening event which would justify a grеater sentence.* While we approve the remand of this case for resentencing, we quash that portion of the opinion below which states that Blackshear could be resentenced to life imprisonment.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT and KOGAN, JJ., concur.