JOSHUA KIMBROUGH
v.
THE STATE OF FLORIDA
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The appellate court vacated a defendant's sentence because the trial court improperly considered charges of which the defendant had been acquitted. The case emphasizes that considering acquitted charges during sentencing is a due process violation.
Yes, the trial court erred by considering charges of which the defendant had been acquitted. Such consideration violates due process and fundamental error principles.
[1] A court may not consider charges of which an accused has been acquitted when passing sentence.
[2] Fundamental error occurs when a trial court considers constitutionally impermissible factors during sentencing.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[I]t is fundamental that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence.”
Establishes the core legal principle violated by the trial court's actions.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJoshua Kimbrough was convicted of resisting an officer without violence. During sentencing, the trial court mentioned Kimbrough's juvenile adjudicatio…
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GORDO, J.
Joshua Kimbrough appeals his sentence upon conviction for resisting an officer without violence. He asserts that he is entitled to have his sentence vacated and be resentenced by another judge because the trial court improperly considered prior charges of which he had been acquitted when imposing the sentence. “[I]t is fundamental that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence.” Epprecht v. State, 488 So. 2d 129, 131 (Fla. 3d DCA 1986) (citing Townsend v. Burke, 334 U.S. 736, 740 (1948)); see Drinkard v. State, 177 So. 3d 993, 994 (Fla. 1st DCA 2015). “Fundamental error occurs where a trial court considers constitutionally impermissible factors when imposing a sentence.” Yisrael v. State, 65 So. 3d 1177, 1177 (Fla. 1st DCA 2011). Following trial, the jury returned a verdict of guilty for the charge of resisting an officer without violence, a first-degree misdemeanor. During the sentencing hearing, the trial court withheld adjudication and sentenced Kimbrough to 364 days reporting probation. The court explained: And I am going to make two special conditions, anger management and a mental health evaluation and treatment.
And here is why. As a juvenile you were adjudicated for resisting an officer with violence. You were charged and went to trial, although you were acquitted at trial of another incident with two counts of resisting an officer, one with violence, and one without violence, and you
knew that. I didn’t know that until today. Or well, until I was given this, maybe yesterday.
And you also have another juvenile adjudication, so this is not your first rodeo.
This transcript raises a reasonable question as to whether the trial court relied on the acquitted charges in pronouncing sentence. Where it remains unclear whether the trial court would have imposed the same sentence absent consideration of an impermissible factor, we must vacate appellant’s sentence and remand for resentencing before a different judge. See Epprecht, 488 So. 2d at 131; Drinkard, 177 So. 3d at 994; Nawaz v. State, 28 So. 3d 122, 125 (Fla. 1st DCA 2010). Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Townsend v. Burke, 334 U.S. 736 (U.S. 1948)
- Irfan Nawaz v. State, 28 So. 3d 122 (Fla. 1st DCA 2010)
- Yeshuwa Yisrael v. State, 65 So. 3d 1177 (Fla. 1st DCA 2011)
- Eladio T. Elizagarate v. State, 488 So. 2d 129 (Fla. 3d DCA 1986)