Summary
In Panek v. State, 593 So.2d 307 (Fla. 3d DCA 1992), this Court stated that a claim of judicial vindictiveness is neither reviewable nor cognizable on appeal where the actual sentence fell within the range of recommended guideline.
Summary of this case from Gonzalez v. StateOpinion
No. 91-1757.
January 28, 1992.
Appeal from the Circuit Court, Monroe County, J. Jefferson Overby, J.
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard S. Fechter, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and HUBBART and GERSTEN, JJ.
The appellant's claims that judicial vindictiveness infected his sentence are neither reviewable nor cognizable on this appeal because the actual sentence fell within the range of the recommended guidelines. See State v. Stephney, 564 So.2d 1246 (Fla. 3d DCA 1990) (nine year sentence at high end of permissible range, presumptively imposed because defendant failed to accept three and one-half year plea bargain offered by trial court and went to trial instead, vacated for resentencing within recommended guidelines of between five and one-half and seven years). See generally Booker v. State, 514 So.2d 1079, 1081 (Fla. 1987) (pre-guidelines sentence within statutory limits not reviewable); La Barbera v. State, 63 So.2d 654 (Fla. 1953) (same); Walker v. State, 44 So.2d 814 (Fla. 1950) (same).
Affirmed.