Viera v. State

District Court of Appeal of Florida

Viera v. State

35 So. 3d 1005, 2010 Fla. App. LEXIS 7301, 2010 WL 2077141

CourtDistrict Court of Appeal of Florida

DecidedMay 26, 2010

Docket3D07-3300

StatusPublished

Cited by1 cases

This text of 35 So. 3d 1005 (Viera v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Viera v. State, 35 So. 3d 1005, 2010 Fla. App. LEXIS 7301, 2010 WL 2077141 (Fla. Ct. App. 2010).

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Opinion

SCHWARTZ, Senior Judge.

This is an appeal from a conviction and a 40 year sentence for trafficking in heroin. We find no trial error and therefore affirm the conviction. However, after consideration of the circumstances surrounding the sentence in light of the factors stated in Wilson v. State, 845 So.2d 142, 156 (Fla.2003), particularly the judge’s enthusiastic advocacy of the State’s pre-trial offer of a ten year sentence in return for a guilty plea, and the unexplained 40 year sentence (the offense carried a 25 year mandatory minimum) which was imposed after the trial which followed the defendant’s rejection of the offer, we must conclude that the sentence was, in legal parlance, “vindictive,” requiring resentencing by another judge. See Brandful v. State, 858 So.2d 367 (Fla. 3d DCA 2003); Compare Ducks worth v. State, 26 So.3d 74 (Fla. 3d DCA 2010).

Affirmed in part, vacated in part, and remanded.

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SCHWARTZ, Senior Judge.

This is an appeal from a conviction and a 40 year sentence for trafficking in heroin. We find no trial error and therefore affirm the conviction. However, after consideration of the circumstances surrounding the sentence in light of the factors stated in Wilson v. State, 845 So.2d 142, 156 (Fla.2003), particularly the judge’s enthusiastic advocacy of the State’s pre-trial offer of a ten year sentence in return for a guilty plea, and the unexplained 40 year sentence (the offense carried a 25 year mandatory minimum) which was imposed after the trial which followed the defendant’s rejection of the offer, we must conclude that the sentence was, in legal parlance, “vindictive,” requiring resentencing by another judge. See Brandful v. State, 858 So.2d 367 (Fla. 3d DCA 2003); Compare Ducks worth v. State, 26 So.3d 74 (Fla. 3d DCA 2010).

Affirmed in part, vacated in part, and remanded.

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35 So. 3d 1005, 2010 Fla. App. LEXIS 7301, 2010 WL 2077141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viera-v-state-fladistctapp-2010.

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