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Vindictiveness and Foster resentencing

You're representing a client on a Foster sentencing remand:  the judge gave your guy, a first-time offender, three years on a third-degree felony, after making the findings justifying a more-than-minimum sentence, but the court of appeals vacated it because Foster declared the more-than-minimum findings unconstitutional.  A number of people, yours truly included, have noted the absurdity of this:  if the judge went to the trouble of making findings to impose more than the minimum sentence, it doesn't make much sense to remand the case for resentencing where he can impose more than the minimum sentence without making any findings at all.  But here's the tricky part:  while it's unlikely that the judge is going to give your client less time, can he give him more?

That was the exact situation faced a few weeks back by the 3rd District in State v. Wagner.  The defendant had been sentenced to 12 months on a fourth-degree felony, the sentence was vacated under Foster, and on remand the judge gave him 15 months.  As the court indicated, this raised the question of vindictiveness in resentencing.  Normally, if a judge hands down a stiffer sentence after an appeal, there's a presumption that it's retaliation for the defendant having exercised his constitutional rights.

That's only a presumption, and there's some big exceptions.  If the initial sentencing was on a plea, and the defendant then goes to trial and is convicted, all bets are off; the lack of acceptance of responsibility, plus what comes out at trial, is almost invariably sufficient to impose a stiffer sentence.  You might want to check out this decision last year from the 5th District, which discusses the law on vindictiveness in resentencing in more detail.

Still, the general rule is that the trial court has to state some reason for increasing the sentence.  Keep in mind that Foster itself might provide that reason.  If, for example, the judge gave the minimum sentence the first time around, it seems likely that he can overcome the presumption of vindictiveness by pointing out that he had to make findings before giving more than the minimum sentence before, and now he doesn't have to do that.

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