DAMIEN OSBORNE MACINTOSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court violates due process rights by basing a sentence, in part, on uncharged or dismissed offenses, especially when those allegations are unsubstantiated hearsay.
The defendant was sentenced for grand theft and assault. The trial court's comments indicated the sentence was influenced by the belief that the defen…
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Damien 0. Macintosh appeals, his five-year sentence.for. grand theft and assault. Although the sentence was authorized by the Criminal Punishment. Code, section 921.002, Florida Statutes (2014), Macintosh correctly argues that the trial' court violated his due process rights by basing his sentence, at least in part, on uncharged or dismissed offenses. See Crouse v. State, 101 So.3d 901, 903 (Fla. 4th DCA 2012) (holding that while sentencing court may consider “any and all information that reasonably might bear on the proper sentence,” it may not consider “unsubstantiated allegations of misconduct”);
Yisrael v. State, 65 So.3d 1177, 1178 (Fla. 1st DCA 2011) (holding that “[c]on-sideration of pending or dismissed charges during sentencing results in a denial of the defendant’s due process rights”).
In this case, the trial court’s comments indicate that the sentence was influenced by its belief that Máclntosh had committed uncharged acts of violence against another individual. Although this may be a proper sentencing consideration, here, the allegations of violence were unsubstantiated hearsay from 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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Williams v. State, 193 So. 3d 1017 (Fla. 1st DCA 2016)…f the impermissible factors, we are required to reverse and remand for resentencing before a different judge. See Yisrael v. State, 65 So. 3d 1177, 1178 (Fla. 1st DCA 2011), approved by Norvil v. State, 191 So. 3d 406 (Fla.2016); MacIntosh v. State, 182 So. 3d 888 (Fla. 5th DCA 2016); Mosley v. State,. — So. 3d ——, 40 Fla. L. Weekly D2513, 2015 WL 6777209 (Fla. 2d DCA Nov. 6, 2015). AFFIRMED in part; REVERSED in part; REMANDED for resentencing. WOLF, WETHERELL, .and KELSEY, JJ., concur. . Appellant represe…
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Shelko v. State, 268 So. 3d 1003 (Fla. 5th DCA 2019)
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Akeen Kadoni Paul v. State (Fla. 1st DCA 2019)…(Fla. 2d DCA 2013) (noting that nothing presented either in the sentencing memorandum or at the sentencing hearing connected the appellant to any alleged continuing fraud and reversing and remanding for a new sentencing hearing); Macintosh v. State, 182 So. 3d 888, 889 (Fla. 5th DCA 2016) (“[T]he trial court’s comments indicate that the sentence was influenced by its belief that [the appellant] had committed uncharged acts of violence . . . . Although this may be a proper sentencing consideration, here, the a…
Authorities Cited
- Yeshuwa Yisrael v. State, 65 So. 3d 1177 (Fla. 1st DCA 2011)
- Reese v. State, 639 So. 2d 1067 (Fla. 4th DCA 1994)
- Damiroquan McGILL v. State, 148 So. 3d 531 (Fla. 5th DCA 2014)
- Ulysses Crouse Jr. v. State, 101 So. 3d 901 (Fla. 4th DCA 2012)