RODNEY COOK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rodney Cook appeals his sentencing for manslaughter, contending the trial court impermissibly considered that he was the shooter (a factor on which he was acquitted) when imposing a departure sentence above the guidelines. The appellate court reverses and remands for resentencing before a different judge, finding the trial court's candid remarks demonstrate it relied on impermissible considerations.
The trial court committed reversible error by relying on impermissible considerations. The state, not the defendant, bears the burden of showing the trial court did not rely on impermissible factors, and the trial court's candid remarks demonstrate it did so rely. Accordingly, the sentence is reversed and the case remanded for resentencing before a different judge.
[1] A trial court may not rely upon impermissible considerations when sentencing a defendant.
[2] A trial court may not consider offenses for which a defendant has been acquitted when passing sentence.
Previewing 2 of 5 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“It 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 that acquitted charges cannot be considered at sentencing.
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Join FLexlaw to unlock all legal intelligenceCook was initially convicted of first degree murder but that conviction was overturned on appeal. On retrial, he was convicted of manslaughter without…
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BARKDULL, Judge.
Appellant seeks review of a sentence imposed on resentencing.
Rodney Cook was tried and found guilty of first degree murder. That conviction was overturned by this court.1 On retrial Cook was found guilty of manslaughter without a firearm and the trial court imposed a departure sentence. Cook once again appealed.
This court affirmed Cook’s conviction and remanded for resentencing within the guidelines.2 At the hearing on resentencing the prosecutor stated that Cook had been the shooter and that others, who were tried separately, in this case had been found not to be the shooters yet they still received life sentences with twenty-five year minimum man-datories. Defense counsel objected. The prosecutor stated that the court should look to the proportionality of the charge since Cook was the shooter. Defense counsel again objected.
The trial court stated that “considering that the victim had a bullet in his body, that is certainly a difficult verdict to understand, there is no doubt. I think the verdict is more a tribute to your [defense counsel’s] skills as a persuader than the tribute to the truth.” Further, the court stated “Okay. I remember the case very clearly. And again, we all have been here long enough to know that sometimes the verdicts of juries are not necessarily explainable after they come back. From every thing that I remember about this case, the verdict appeared to be what we customarily refer to as simply a jury pardon. Why? I don’t no. I wasn’t in there.” Finally, the trial court stated that it felt it appropriate to impose the maximum permitted sentence and sentenced Cook to fifteen years in the state penitentiary-
The trial court may not rely upon impermissible considerations when sentencing a defendant. The trial court may not take into consideration, when sentencing a defendant in a criminal case, offenses for which the defendant has been acquitted. See Epprecht v. State, 488 So. 2d 129 (Fla. 3d DCA 1986); see and compare Reese v. State, 639 So. 2d 1067 (Fla. 4th DCA 1994). “It is fundamental that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence.” Epprecht, 488 So. 2d at 131; See and compare Reese.
“[T]he test to be applied by a reviewing court in respect to the primary sentencing issue here involved is that the State has the burden to show from the record as a whole that the trial judge did not rely upon impermissible considerations in passing sentence upon defendant where portions of the record reflect that the trial judge may have so relied.” Epprecht, 488 So. 2d at 130.
Based on the record and the trial court’s candid remarks it cannot be said that the trial court did not take into consideration impermissible factors in sentencing Cook. See Reese; Epprecht. In an attempt to meet its burden the state argues that the trial court’s statements “do not show that the trial court actually relied upon the impermissible consideration that the defendant was the ‘shooter’ when it later sentenced him.” Further, the state explains that the trial court was merely expressing its surprise at the verdict.
Finally, the state concludes that the trial court did not err because “when the trial court sentenced the defendant, it did so without making any statement or reference that it was of the opinion that the defendant was the ‘shooter,’ or that it was considering such in passing sentence upon him.” The state misconstrues the standard of review. Cook need not show that the trial court actually relied upon impermissible considerations in sentencing him, the state must demonstrate that the trial court did not. Ep-precht.
Accordingly, we reverse and remand for resentencing. On resentencing Cook should be sentenced by another judge “to preclude any perception on [his] part that the resentencing may not be conducted in a completely fair and impartial manner.” Epprecht, 488 So. 2d at 131.
Reversed and remanded with instructions.
. Cook v. State, 595 So. 2d 994 (Fla. 3d DCA 1992).
. Cook v. State, 632 So. 2d 86 (Fla. 3d DCA 1994).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nusspickel v. State, 966 So. 2d 441 (Fla. 2d DCA 2007)…hat discuss an exception to the general rule, including Epprecht v. State, 488 So. 2d 129 (Fla. 3d DCA 1986), and its progeny, Doty v. State, 884 So. 2d 547 (Fla. 4th DCA 2004), Seays v. State, 789 So. 2d 1209 (Fla. 4th DCA 2001), and Cook v. State, 647 So. 2d 1066 (Fla. 3d DCA 1994). In Epprecht, the Third District held “that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence.” 488 So. 2d at 131. If portions of the record reflect that t…
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Titus Seays v. State, 789 So. 2d 1209 (Fla. 4th DCA 2001)…nt where portions of the record reflect that the trial judge may have so relied. We adopt this as the proper test and, applying it here, reverse the defendant’s sentence and remand for resen-tencing before a different judge. See also Cook v. State, 647 So. 2d 1066 (Fla. 3d DCA 1994). The state relies on Jansson v. State, 399 So. 2d 1061 (Fla. 4th DCA 1981). In Jansson, the issue was whether the trial court had erred in considering prior arrests which were reflected in the presentence investigation report and…
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Shon Evans v. State, 816 So. 2d 742 (Fla. 4th DCA 2002)…68 S.Ct. 1252, 92 L.Ed. 1690 (1948), it has been the law that it is a violation of a defendant’s due process rights for the court to rely upon conduct for which the defendant has actually been acquitted in imposing sentence. See also Cook v. State, 647 So. 2d 1066 (Fla. 3d DCA 1994); Epprecht v. State, 488 So. 2d 129, 131 (Fla. 3d DCA 1986). Here, Evans argues that his due process rights were violated when, during the sentencing hearing, the trial judge considered his possession of a firearm even though he w…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Reese v. State, 639 So. 2d 1067 (Fla. 4th DCA 1994)
- Eladio T. Elizagarate v. State, 488 So. 2d 129 (Fla. 3d DCA 1986)
- Epprecht v. State, 488 So. 2d 129 (Fla. 3d DCA 1986)
- Cook v. State, 595 So. 2d 994 (Fla. 3d DCA 1992)
- Cook v. State, 632 So. 2d 86 (Fla. 3d DCA 1994)