DAMIROQUAN MCGILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Damiroquan McGill was sentenced to twelve years for firearm possession by a delinquent in adult court. The appellate court reversed his sentence, finding that the sentencing judge violated his due process rights by relying on unsubstantiated allegations of robbery and gang affiliation, including uncorroborated hearsay.
The sentencing court violated McGill's due process rights by relying on unsubstantiated allegations of robbery and improper hearsay evidence of gang affiliation. Although a trial court may consider gang affiliation as a sentencing factor, it may not do so based on uncorroborated hearsay or unsubstantiated allegations. The sentence was reversed and the case remanded for de novo sentencing before a different judge.
[1] A sentencing court violates a defendant's due process rights by basing the sentence, in whole or in part, on unsubstantiated allegations of misconduct.
[2] A sentencing court may not consider pending or dismissed charges during sentencing.
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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 fundamental principle that dismissed or pending charges cannot be used in sentencing calculations
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Join FLexlaw to unlock all legal intelligenceMcGill was direct filed and adjudicated in adult court for possession of a firearm by a delinquent. At sentencing, the judge based the twelve-year sen…
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Damiroquan McGill appeals his twelve-year sentence for possession of a firearm by a delinquent, which was direct filed and adjudicated in adult court. Although the sentence was below the statutory maximum penalty, McGill correctly argues that the sentencing court violated his due process rights by basing his sentence, at least in part, on improper considerations. See Yisrael v. State, 65 So.3d 1177, 1178 (Fla. 1st DCA 2011) (stating that “[cjonsider-ation of pending or dismissed charges during sentencing results in a denial of the defendant’s due process rights”); Crouse v. State, 101 So.3d 901, 903 (Fla. 4th DCA 2012), (stating that while a sentencing court may consider “any and all information that reasonably might bear on the proper sentence,” it may not consider such constitutionally improper factors as “unsubstantiated allegations of misconduct” (citations omitted)); cf. Jansson v. State, 399 So.2d 1061, 1064 (Fla. 4th DCA 1981) (stating that “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”). In this case, the judge’s comments indicate that the sentence was influenced by the judge’s belief that McGill had committed acts of robbery, based solely upon unsubstantiated allegations and prior charges that had not resulted in convictions. In addition, the judge indicated that the sentence was influenced by a belief that McGill was affiliated with a gang. Although this is a proper sentencing consideration, Crouse, *532101 So.3d at 903, the trial judge improperly relied upon unsubstantiated allegations of McGill’s gang involvement in the form of objected-to hearsay from a police detective. Id.-, see also Jackson v. State, 588 So.2d 1085, 1086 (Fla. 5th DCA 1991) (“Once the truth of the hearsay information presented at the sentencing hearing was specifically disputed, the state was obligated to carry its burden of corroborating the accuracy of the [information].” (citation omitted)).
We reverse McGill’s sentence and remand for a de novo sentencing hearing before a different judge.
REVERSED AND REMANDED FOR RESENTENCING.
PALMER and WALLIS, JJ., concur.
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Damien Osborne MacIntosh v. State, 182 So. 3d 888 (Fla. 5th DCA 2016)…m the assistant state attorney, to which Macintosh objected. Because we cannot determine whether Macintosh’s sentence was influenced by the consideration of the improper argument, we remand for resentencing by a different judge. See McGill v. State, 148 So. 3d 531 (Fla. 5th DCA 2014); Reese v. State, 639 So. 2d 1067 (Fla. 4th DCA 1994). REVERSED and REMANDED. BERGER and EDWARDS, JJ., concur.…
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Berben v. State, 268 So. 3d 235 (Fla. 5th DCA 2019)
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Brown v. State, 225 So. 3d 947 (Fla. 5th DCA 2017)…derations.” Nusspickel v. State, 966 So. 2d 441, 444-45 (Fla. 2d DCA 2007). Given the record here, the State has not carried its burden. Accordingly, we reverse the sentence and remand for re-sentencing before a different judge. See McGill v. State, 148 So. 3d 531 (Fla. 5th DCA 2014). REVERSED and REMANDED. COHEN, C.J., BERGER and EISNAUGLE, JJ„ concur. BERGER, J., concurs specially, with opinion, in which EISNAUGLE, J., concurs.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Yeshuwa Yisrael v. State, 65 So. 3d 1177 (Fla. 1st DCA 2011)
- Ulysses Crouse Jr. v. State, 101 So. 3d 901 (Fla. 4th DCA 2012)
- Jackson v. State, 588 So. 2d 1085 (Fla. 5th DCA 1991)
- 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)