TITUS SEAYS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court errs in considering a pending criminal charge against a defendant when imposing a sentence, as this violates due process.
[1] A trial court errs by considering pending criminal charges against a defendant when imposing a sentence.
[2] A trial court may consider prior arrests for sentencing purposes, provided the court recognizes they are not convictions and the defendant has an opportunity to explain t…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of burglary and battery. At sentencing, the trial court considered a pending attempted murder charge against the defendant…
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On Motion for Rehearing
KLEIN, J.
We withdraw our opinion which was filed on May 30, 2001 and substitute the following opinion.
We affirm appellant’s conviction for burglary of a conveyance with a battery but reverse for resentencing because of information which may have improperly influenced his sentence.
The victim in this ease had lived with the appellant until the night before the burglary and battery. On the day that the jury found appellant guilty, the trial court observed that appellant had been charged with attempted murder of the same victim while he was out on bond in this case. The state responded that the new charge was based on an occurrence which took place within two days of the burglary and battery.
Several weeks later, at appellant’s sentencing hearing, appellant asked for the bottom of the guidelines, 48.9 months, as this was his first felony conviction. In arguing for the top of the guidelines, the state reminded the trial court of the pending attempted murder charge, and the court responded “I understand serious charges are pending now on Mr. Seays.” The state maintained, however, that it was not seeking a departure, only the top of the guidelines. The trial court imposed a sentence of 81.5 months, the highest permissible guideline sentence, and added that the incarceration period would be followed by five years probation.
Appellant argues that the trial court erred in considering the pending attempted murder charge in sentencing him.1 He relies on cases such as Reese v. State, 639 So. 2d 1067, 1068 (Fla. 4th DCA 1994)(consideration of “unsubstantiated allegations of misconduct” at sentencing “violates fundamental due process.”); State v. Potts, 526 So. 2d 63 (Fla.1988)(“The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime.”).
In Epprecht v. State, 488 So. 2d 129, 130 (Fla. 3d DCA 1986), the trial court in sentencing considered charges for which the defendant had been acquitted, and the third district reversed explaining:
[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. Townsend v. Burke, 334 U.S. 736, 740, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693 (1948).
The Epprecht court further stated:
The State and the defendant propose that the 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 consideration in passing sentence upon the defendant 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 resentencing 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 other information. This court held, after considering federal law as well as cases from other jurisdictions:
[A] trial court can consider a defendant’s prior arrests not leading to convictions for purposes of sentencing so long as the court recognizes that these arrests are not convictions or findings of guilt, and the defendant is given an opportunity to explain or offer evidence on the issue of his prior arrests.
Id. at 1064.
The present case is distinguishable from Jansson in that the trial court considered a subsequent arrest, not prior arrests. In addition, in Jansson the defendant was given the opportunity to explain the circumstances of the prior arrests and the sentencing judge also knew whether those arrests had resulted in convictions.
Applying the test adopted in Epprecht, which puts the burden on the state to show that the trial court did not rely on improper considerations in sentencing under these circumstances, we find that the state has not carried that burden. Accordingly, as we did in Reese, and as the third district did in Epprecht, we reverse and remand for resentencing by a different judge.
DELL and GUNTHER, JJ., concur. . Appellant asserts that he was acquitted of the charge and the state does not dispute it.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Nusspickel v. State, 966 So. 2d 441 (Fla. 2d DCA 2007)…evant and reliable. Nusspickel cites to several cases that 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…
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Futo Charles v. State, 204 So. 3d 63 (Fla. 4th DCA 2016)…y an appellate court.” Howard v. State, 820 So. 2d 337, 339 (Fla. 4th DCA 2002). However, when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant’s due process rights. See, e.g., Seays v. State, 789 So. 2d 1209, 1210 (Fla. 4th DCA 2001). Our standard of review is de novo. Cromartie v. State, 70 So. 3d 559, 563 (Fla.2011). When sentencing a defendant within the statutory range, the judge “may consider a variety of factors, including a defendant’s criminal…1 / 2
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Yeshuwa Yisrael v. State, 65 So. 3d 1177 (Fla. 1st DCA 2011)…of pending or dismissed charges during sentencing results in a denial of the defendant’s due process rights. See Gray v. State, 964 So. 2d 884 (Fla. 2d DCA 2007) (trial court improperly considered pending charges during sentencing); Seays v. State, 789 So. 2d 1209, 1210 (Fla. 4th DCA 2001) (trial court improperly considered pending attempted murder charge, of which the defendant was ultimately acquitted); cf. State v. Potts, 526 So. 2d 63 (Fla. 1988) (“The state through its criminal process may not penalize s…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Townsend v. Burke, 334 U.S. 736 (U.S. 1948)
- 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, 647 So. 2d 1066 (Fla. 3d DCA 1994)
- State v. Potts, 526 So. 2d 63 (Fla. 1988)
- THE Florida BAR v. Weisser, 526 So. 2d 63 (Fla. 1988)
- Inell Thompson and Glen Thompson v. Grimm, 399 So. 2d 1061 (Fla. 4th DCA 1981)
- Robert v. Ettari, 399 So. 2d 1061 (Fla. 4th DCA 1981)