FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D19-368

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MARVIN LOVE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Duval County.

Marianne L. Aho, Judge.

October 30, 2019

PER CURIAM.

Marvin Love appeals an order summarily denying his motion

for postconviction relief. Love claims his counsel was ineffective for 

not objecting to a vindictive and disparate sentence. Because the 

record conclusively refutes this claim, we affirm.

Love entered guilty pleas in two separate cases. In the first 

case, Love pleaded guilty to armed robbery with possession of a 

firearm and kidnapping with possession of a firearm. The trial 

court sentenced Love to concurrent terms of twenty years’ 

imprisonment with a ten-year mandatory minimum. In the second 

case, Love pleaded guilty to armed robbery and kidnapping. He 

was sentenced to concurrent terms of twenty years’ imprisonment 
2

to run concurrently with the sentences in the first case. Love did 

not file a direct appeal in either case.

In his postconviction motion, Love claims that he was 

similarly situated to his co-defendant, Joylynn Smith, and should 

have received a sentence similar to hers. Instead, Smith’s sentence 

was much lighter: she received two years’ imprisonment, followed 

by three years’ probation. Love argues that his counsel was 

ineffective for not objecting to his sentences as vindictive or 

disparate. 

To show ineffective assistance of counsel, Love was required 

show that counsel’s performance was outside the wide range of

reasonable professional assistance, and that such conduct

prejudiced the outcome of the proceedings because without the 

conduct there is a reasonable probability that the outcome would 

have been different. Strickland v. Washington, 466 U.S. 668, 687-

88, 691-92 (1984); Spencer v. State, 842 So. 2d 52 (Fla. 2003).

Because he entered a guilty plea, Love was also required to show

“that there is a reasonable probability that, but for counsel’s 

errors, he would not have pleaded guilty and would have insisted 

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). 

But Love has not shown ineffective assistance of counsel

because he did not show that the trial court imposed a vindictive 

sentence. A sentence is vindictive when a court punishes a 

defendant for exercising his constitutional rights, such as when a 

court imposes a longer sentence after the defendant has prevailed 

on an appeal or collateral motion. North Carolina v. Pearce, 395 

U.S. 711, 723-24 (1969), overruled on other grounds by Alabama v. 

Smith, 490 U.S. 794 (1989). Love did not show that the trial court 

sentenced him more harshly because he exercised a constitutional 

right. His counsel was not ineffective for not raising this meritless 

objection. Hitchcock v. State, 991 So. 2d 337, 361 (Fla. 2008).

Love also did not show that his counsel was ineffective for 

failing to object to his sentence as disparate because Love and his 

co-defendant were not in fact similarly situated. In a criminal case 

not involving the death penalty, a sentence “violates the Equal 

Protection Clause only if it reflects disparate treatment of 

similarly situated defendants lacking any rational basis.” Peters v. 
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State, 128 So. 3d 832, 853 (Fla. 4th DCA 2013) (quoting United 

States v. Pierce, 409 F.3d 228, 234 (4th Cir. 2005)). Here, the 

charged offenses, the pleas, and the sentences available to Love 

and his co-defendant were markedly different. First, the charges 

were distinct. Unlike Love, Smith was not charged with possession 

of a firearm. Second, their pleas were not the same. Smith pleaded

to two counts of armed robbery and two counts of kidnapping.

Third, Smith was eligible for and received a youthful offender 

sentence because she was seventeen years old at the time of the 

offense. § 958.04, Fla. Stat. (2009) (“. . . if the offender is younger 

than 21 years of age at the time sentence is imposed”). Love was 

twenty-six years old at the time of the offense and did not qualify 

for a youthful offender sentence. The differences in the charges, 

pleas, and eligibility for youthful offender sentencing show that 

Love was not similarly situated to Smith. And so Love’s counsel 

was not ineffective for raising a meritless disparate sentencing 

objection to Love’s sentence. Hitchcock, 991 So. 2d at 361.

Because Love failed to show that his counsel rendered 

ineffective assistance, the postconviction court did not err in 

denying the motion for postconviction relief. 

AFFIRMED.

B.L. THOMAS, ROWE, and WINOKUR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Marvin Love, pro se, Appellant.

Ashley Moody, Attorney General, and Heather Flanagan Ross, 

Assistant Attorney General, Tallahassee, for Appellee.