YESHUWA YISRAEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Yeshuwa Yisrael appeals his 30-year sentence for familial or custodial sexual battery. The court vacates the sentence and remands for resentencing before a different judge because the trial court impermissibly considered pending and dismissed sexual battery charges during sentencing, violating due process.
The court held that the trial court's remarks and questioning regarding the dismissed and pending charges, combined with the immediate imposition of the maximum sentence, constitute fundamental error because they demonstrate that the court considered constitutionally impermissible factors (charges for which the defendant was not tried) when determining the sentence.
[1] A trial court commits fundamental error when it considers constitutionally impermissible factors during sentencing.
[2] Consideration of pending or dismissed charges during sentencing constitutes a denial of a defendant's due process rights.
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Join FLexlaw to unlock all legal intelligence“Consideration of pending or dismissed charges during sentencing results in a denial of the defendant's due process rights.”
Establishes the legal principle that trial courts cannot use uncharged or dismissed conduct in sentencing decisions
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Join FLexlaw to unlock all legal intelligenceYisrael was convicted by jury of rape of one victim. At sentencing, the trial court questioned him about two other sexual battery charges—one pending …
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Yeshuwa Yisrael seeks review of his sentence for familial or custodial sexual battery. We vacate the 30-year sentence and remand for sentencing before a different judge because the trial court’s remarks before pronouncing the sentence are reasonably construed as impermissible comments on charges for which Yisrael has not been tried, amounting to a denial of due process and fundamental error.
Fundamental error occurs where a trial court considers constitutionally impermissible factors when imposing a sentence. See, e.g., Nawaz v. State, 28 So.3d 122, 124-25 (Fla. 1st DCA 2010) (finding fundamental error where trial court appeared to base sentence partly on defendant’s national origin); Jackson v. State, *117839 So.3d 427 (Fla. 1st DCA 2010) (finding fundamental error where court appeared to be punishing the defendant for failure to show remorse for a crime in which he denied involvement).1 Consideration 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 someone merely for the status of being under indictment or otherwise accused of a crime, as it has attempted to do here.”).
At the sentencing hearing, the trial court questioned Yisrael about two other charges for sexual battery (one pending and the other dismissed because, according to the prosecution, the victim would not testify):
THE COURT: Okay. Well, what do you have to say about yourself, about these other children too that didn’t want to testify against you, are they just lying or something?
THE DEFENDANT: Yes, Your Honor, they will lie for whatever reasons, disciplinary actions or whatever.
THE COURT: All right. So you didn’t rape these other children?
THE DEFENDANT: No, sir.
THE COURT: What about the jury found you guilty of the rape of the mid-die child, what do you have to say about that?
Shortly after questioning Yisrael, the court imposed the maximum authorized sentence of 30 years with the following additional remark on the other charges:
There [are] other victims apparently that don’t want to testify. So the Court is going to sentence you to 30 years’ Florida State Prison with mandatory court costs.
The court’s remark that there were “other victims apparently that don’t want to testify,” made immediately before pronouncing sentence, and his question to Yisrael whether he “rape[d] these other children” strongly indicate that the dismissed and pending charges were a factor in the court’s determination to impose the maximum allowable sentence.
Although the evidence in this ease may provide more than ample justification for the sentence imposed on Yisrael, and our remand in no way precludes this or some equivalent sentence, we are not convinced that the trial court would have imposed the same sentence absent consideration of these impermissible factors. We are required, therefore, to reverse the sentence and remand for resentencing before a different judge.
REVERSED and REMANDED with instructions.
VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.
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Norvil v. State, 191 So. 3d 406 (Fla. 2016)…PERRY, J. Sidney Norvil, Jr., seeks review of the decision of the Fourth District Court of Appeal in Norvil v. State, 162 So. 3d 3 (Fla. 4th DCA 2014), on the ground that it expressly and directly conflicts with Yisrael v. State, 65 So. 3d 1177 (Fla. 1st DCA 2011), Mirutil v. State, 30 So. 3d 588 (Fla. 3d DCA 2010), and Gray v. State, 964 So. 2d 884 (Fla. 2d.DCA 2007), on the issue of whether a trial court violated a defendant’s due process rights at sentencing by considering a subsequent…
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Fernandez v. State, 212 So. 3d 494 (Fla. 2d DCA 2017)…lso Hayes v. State, 150 So. 3d 249, 251 (Fla. 1st DCA 2014). Mr. Fernandez correctly argues that a trial court’s consideration of a constitutionally impermissible sentencing factor is a fundamental error in the sentencing process. Yisrael v. State, 65 So. 3d 1177, 1177 (Fla. 1st DCA 2011); see also Williams v. State, 164 So. 3d 739, 740 (Fla. 2d DCA 2015) (finding “fundamental error and a denial of due process” in the consideration of certain sentencing factors). The question then becomes whether the sentenc…
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Martinez v. State, 123 So. 3d 701 (Fla. 1st DCA 2013)…ppeal. See Howard v. State, 820 So. 2d 337, 339 (Fla. 4th DCA 2002). But a sentence cannot stand, at least on direct appeal, if the sentencing judge considered constitutionally impermissible factors in arriving at the sentence. See Yisrael v. State, 65 So. 3d 1177, 1178 (Fla. 1st DCA 2011). Relying on pending or dismissed charges, in effect deeming such charges established without proof or a conviction, violates a defendant’s right to due process. See id. Taking “unsubstantiated allegations of wrongdoing” as…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Irfan Nawaz v. State, 28 So. 3d 122 (Fla. 1st DCA 2010)
- Jackson v. State, 39 So. 3d 427 (Fla. 1st DCA 2010)
- Titus Seays v. State, 789 So. 2d 1209 (Fla. 4th DCA 2001)
- Gray v. State, 964 So. 2d 884 (Fla. 2d DCA 2007)
- State v. Potts, 526 So. 2d 63 (Fla. 1988)
- THE Florida BAR v. Weisser, 526 So. 2d 63 (Fla. 1988)