VICTOR GUERRA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fourth District Court of Appeal reversed Victor Guerra's 45-year sentence for solicitation to commit murder, armed home invasion robbery, and refusal to submit a DNA sample, holding that the trial judge erred by permitting cross-examination during allocution and that the sentence was based on improper considerations—specifically the defendant's refusal to answer questions about a codefendant's involvement.
The court reversed the sentence because the trial judge erred in permitting cross-examination during allocution, which violated Florida Rule of Criminal Procedure 3.720(b) and due process. The court found that the sentence was based on improper considerations—specifically the judge's frustration at appellant's refusal to answer questions about a codefendant's involvement—and remanded for resentencing before a different judge.
[1] A defendant's right to allocution, the opportunity to make an unsworn statement to the sentencing judge, is not subject to cross-examination.
[2] A trial court errs by subjecting a defendant to cross-examination during their allocution.
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Join FLexlaw to unlock all legal intelligence“a criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution, not subject to cross-examination”
Establishes the legal standard that allocution statements are protected from cross-examination under Florida law.
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Join FLexlaw to unlock all legal intelligenceAppellant Guerra entered an open plea to charges involving solicitation to commit murder, armed home invasion robbery, and refusal to submit a DNA sam…
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ON MOTION FOR REHEARING AND CLARIFICATION
We grant the state’s motion for rehearing or clarification and withdraw the opin*542ion issued February 8, 2017. We substitute the following.
We reverse appellant’s sentence of 45 years for solicitation to commit murder, armed home invasion robbery, and refusal to submit a DNA sample, because the trial judge erred in subjecting appellant to cross-examination during his allocution. We remand for resentencing before a different judge.
Appellant entered an open plea to the court. During the plea colloquy, the trial judge asked no questions concerning appellant’s codefendants. Appellant did not dispute the prosecutor’s description of the crime, which involved codefendants. The trial court accepted the plea, ordered a presentence investigation, and set a sentencing hearing for a later date.
Three months later, at the sentencing hearing, defense counsel asked that appellant be sworn in before his allocution. Appellant expressed his remorse and clarified some of the facts given by the prosecutor during his plea hearing, but did not discuss any codefendants. When appellant finished, the state was permitted to cross-examine him. Appellant’s multiple objections to the cross-examination were overruled. Both the state and the trial judge repeatedly asked appellant whether a co-defendant was present with him at the home invasion, but appellant refused to answer. On several occasions the judge voiced her exasperation, asking how appellant could seek the court’s mercy while refusing to confirm a codefendant’s involvement in the criminal conduct. Ultimately, the court sentenced appellant to 30 years for the robbery and 15 years for solicitation to commit murder, to run consecutively, followed by 10 years of probation.
Florida Rule of Criminal Procedure 3.720(b) requires the court to entertain submissions and evidence from the parties that are relevant to sentencing. In Jean-Baptiste v. State, we construed this rule to mean that “a criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution,” not subject to cross-examination. 155 So.3d 1237, 1242 (Fla. 4th DCA 2015); see also Chillingworth v. State, 846 So.2d 674, 676 (Fla. 4th DCA 2003). The trial court erred by subjecting appellant to cross-examination. By the judge’s questioning of appellant and her expressed frustration at his unwillingness to answer these questions, it is apparent that the imposed sentence was based on improper considerations. See Norvil v. State, 191 So.3d 406, 409 (Fla. 2016); see also Allen v. State, 42 Fla. L. Weekly D125 (Fla. 4th DCA Jan. 4, 2017) (explaining that due process is violated where a defendant is forced to decide between remaining silent or making a potentially false statement at the court’s coercion, to receive a less harsh sentence). Thus, we reverse appellant’s sentence and remand for sentencing before a different judge.
Reversed and remanded.
Warner and May, JJ., concur.
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Baehren v. State, 234 So. 3d 799 (Fla. 4th DCA 2018)…compelling as the state’s argument may be, we are ---PAGE 3--- 3 bound by the bright line rule announced in Norvil. Consequently, we reverse the defendant’s sentences and we remand for resentencing before a different judge. See Guerra v. State, 212 So. 3d 541, 542 (Fla. 4th DCA 2017) (reversing for sentencing before a different judge where sentence was based on improper considerations). We additionally take this opportunity to reiterate “that a criminal defendant prior to sentencing has the opportunity…
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Jehu Alex Compere v. State, 262 So. 3d 819 (Fla. 4th DCA 2019)…when the defendant was not permitted to make an unsworn statement. Id. We specifically noted rule 3.720 does not require the defendant to be unsworn nor does it prohibit a defendant from cross-examination. Id. at 1241. In Guerra v. State, 212 So. 3d 541 (Fla. 4th DCA 2017), the court and the State cross-examined the defendant over defense counsel’s objection. Guerra, 212 So. 3d at 542. The opinion reveals the trial court’s frustration with the defendant when he refused to name a co-defendant d…
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Tyrie Deveonta Theophile v. State, 240 So. 3d 15 (Fla. 4th DCA 2018)…e with the Defendant that the court erred when it considered a fact at sentencing that specifically conflicted with a factual finding by the jury. See, e.g., Baehren v. State, 43 Fla. L. Weekly D136 (Fla. 4th DCA Jan. 10, 2018); Guerra v. State, 212 So. 3d 541, 542 (Fla. 4th DCA 2017). While orally pronouncing the sentence, the court stated that the Defendant “pulled out a firearm”; that he was “brandishing a firearm”; and, again, that he “pulled out firearms.” Yet as counsel for the Defendant noted…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Norvil v. State, 191 So. 3d 406 (Fla. 2016)
- Chillingworth v. State, 846 So. 2d 674 (Fla. 4th DCA 2003)
- Guichard Jean-Baptiste v. State, 155 So. 3d 1237 (Fla. 4th DCA 2015)