Bowser v. State

I concur with the majority's adoption of a count-by-count method to determine whether a subsequent sentence is harsher than the sentence originally imposed. And therefore I agree with the majority that Bowser' second sentence "was more severe than his original sentence for due process purposes." Majority opinion ante at 543. However, I disagree with the majority's adoption of a bright line rule that a presumption of vindictiveness "does not apply where a different judge imposes a higher sentence after retrial than the first judge," Majority opinion ante at 544, and thus I respectfully dissent.