Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
In an opinion released on June 29, 2011, the Fourth DCA reversed a sentence which the Court found to be the product of judicial vindictiveness. In Jerome Vardaman v. State, 4D08-2603, the Court reversed two 30 year sentences imposed by Circuit Judge Cynthia Imperato of the Seventeenth Judicial Circuit. In 2002, Vardaman pled to carjacking with a firearm, robbery with a firearm, and resisting arrest without violence, and was sentenced as a Youthful Offender to a combination of prison, community control, and probation. In 2008, Vardaman was arrested on new drug charges. During the violation of probation proceedings, Judge Imperato initiated plea discussions with Vardaman. He rejected the Judge’s initial offer of 8 years’ incarceration on Counts I and II, concurrent, with credit for four years, and proceeded to final hearing. After being found guilty of the violation, Judge Imperato sentenced Vardaman to concurrent 30 year terms.
In its analysis, the Court cited Mounds v. State, 849 So. 2d 1170, 1171 (Fla. 4th DCA 2003) and Wilson v. State, 845 So. 2d 142 (Fla. 2003) for the proposition that where there is judicial participation in plea negotiations, followed by a harsher sentence, a totality of the circumstances approach must be used to determine if the sentence is the product of vindictiveness. If the defendant demonstrates vindictiveness, the burden shifts to the State to rebut the showing. The Court also recalled that other factors to consider include (1) whether the trial judge initiated the plea discussions in violation of State v. Warner, 762 So. 2d 507, 513 (Fla. 2000); (2) whether the judge, through comments on the record, appeared to have departed from the role of impartial arbiter by either urging the defendant to accept the plea, or by stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and ultimate sentence imposed; and, (4) any lack of facts on the record to explain the reason for the increased sentence. Because Vardaman established each of the foregoing factors, the Fourth DCA reversed his sentence and remanded the matter for resentencing before a different Judge.
The lesson criminal attorneys can take from this case is obvious: be cautious when the trial judge participates in plea negotiations. If the ultimate sentence imposed is more harsh than what was initially offered, and if the above factors are present, there may be a good basis to appeal the sentence based on judicial vindictiveness.
Persons convicted in State court proceedings have several options available to them after they are convicted. These options include (1) filing a direct appeal in a court of appeal; (2) filing a postconviction motion in the trial court, such as a motion to withdraw a plea, or a motion to vacate, set aside, or correct the sentence; and, (3) filing a petition for writ of habeas corpus in Federal court. Persons convicted in Federal court also have the same types of options.
Habeas corpus proceedings are quasi-civil in nature. Although the conviction being attacked is criminal, and the caselaw surrounding habeas issues can overlap into the criminal arena, the proceedings occur in a civil context, and many of the procedural rules are civil in nature. As a result, although the Government or the State may have had to carry the burden in the criminal phase of the proceedings, the burden often shifts to the petitioner during habeas proceedings.
For those wishing to consider filing a petition for writ of habeas corpus, the United States Code contains numerous statutes and rules that should be consulted beforehand. These sections can be found at 28 U.S.C. secs. 2241-2266. Generally, while persons attacking State court convictions file petitions under section 2254, persons attacking Federal court convictions file motions under section 2255. Some of the topics addressed by the statutory sections include (1) the Court’s power to grant the writ and requirements of petitions (secs. 2241 and 2242); (2) procedural matters, such as compiling the record, evidence, and hearings (secs. 2243 and 2245-2250); (3) indigent petitioners (sec. 2250); (4) the one year statute of limitations (sec. 2244(d)(1)); (5) successive petitions (sec. 2244); (6) stays of state court proceedings (sec. 2251); (7) the role of the Attorney General in proceedings attacking state court convictions (sec. 2252); and, (8) appeals of decisions on petitions and certificates of appealability (sec. 2253). In addition, counsel should note that there are specific Rules governing habeas proceedings under both sections 2254 and 2255. Rules 1-12 Governing 2254 Cases and Rules 1-12 Governing 2255 Proceedings can be found in the United States Code immediately following the statutory sections. A form petition for filing under section 2254 and a form motion for filing under section 2255 can also be found immediately after Rule 12 of the 2254 and 2255 Rules.
Persons convicted of capital crimes or their attorneys should consult the Special Habeas Corpus Procedures in Capital Cases, found at 28 U.S.C. secs. 2261-2266.