DEMETRIC MCMILLON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McMillon was convicted of cocaine delivery and sentenced to ten years in prison. On appeal, McMillon argued the trial court improperly enhanced his sentence because he exercised his right to confront witnesses by demanding the confidential informant's identity be revealed. The court agreed with the legal principle but affirmed the sentence, finding no evidence the sentencing decision was actually affected by McMillon's exercise of his rights.
A trial court may not enhance a defendant's sentence as punishment for exercising the right to confront witnesses against him or the right to a trial. However, the trial court's sentencing decision must not be affected by the exercise of these constitutional rights.
[1] A defendant cannot be penalized at sentencing for exercising the right to a trial.
[2] A trial court may not enhance a defendant's sentence based on the exercise of the right to compel the identification of a confidential informant.
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“A defendant has a right to confront the witnesses against him, and he cannot be penalized for exercising his right to a trial to determine his guilt or innocence.”
Establishes the core legal principle that sentencing cannot be used to punish a defendant for exercising constitutional trial rights.
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Join FLexlaw to unlock all legal intelligenceMcMillon was charged with delivery of cocaine. A confidential informant allegedly purchased cocaine from McMillon and identified him in a photo lineup…
The full statement of facts, procedural history, and disposition for this case are member content.
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On May 12, 2011, the State charged Demetric McMillon [“McMillon”] with delivery of cocaine in violation of Florida Statutes section 893.03(2)(a)(4) (2011). After a trial, a jury found him guilty as charged, and the court sentenced him to ten years in the Department of Corrections [“DOC”].
Prior to trial, McMillon filed a motion to compel the identity of the State’s confidential informant, who allegedly purchased cocaine from him. During trial, McMillon relied on misidentification as his theory of defense. The confidential informant testified and described the events of the buy to the jury. In a photo lineup shown to the informant immediately after the transaction, he identified McMillon as the person who sold the cocaine.
The jury found McMillon guilty of delivery of cocaine. The court proceeded immediately to sentencing. McMillon’s attorney argued for a sentence at the bottom range of the guidelines, arguing, essentially, that this was not an “egregious” drug case. The court replied:
Well, other than you’ve exposed a confidential informant’s identity and now he’s *887at risk. He lives here in Kissimmee. I mean, that — that’s huge. That now that person is walking around has testified against this convicted felon. So I — understand that, but I know everyone’s entitled to a trial, but when you — when a person has to — is now at risk because they’re a confidential informant that— that definitely makes it a little more egregious than the standard sale and delivery that we see in this courtroom.
The court then sentenced McMillon to ten years in the DOC. The sentence was well within the range allowed in the punishment code. The scoresheet provided for a sentencing range of 29.25 months imprisonment to 15 years imprisonment. In asking for a ten-year sentence, the prosecutor described McMillon’s criminal history as “horrendous.” He had done nine years in prison for manslaughter and had multiple sale and delivery of cocaine convictions. He had never successfully completed a term of probation.
McMillon contends on appeal that it is improper for a trial court to enhance a defendant’s sentence because he exercised the right to have a confidential informant identified. We agree with this proposition. A defendant has a right to confront the witnesses against him, and he cannot be penalized for exercising his right to a trial to determine his guilt or innocence. The trial court judge’s statement in this case was a response to McMillon’s contention that there was nothing “egregious” about the case. Nothing in this record, however, suggests that the trial court’s sentencing decision was affected by McMillon’s exercise of his rights.
AFFIRMED.
COHEN and BERGER, JJ„ concur.