JOHN GRAHAM DICKIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2017-03-08
No. Case No. 2D15-2709
YILLANTI, C.J., and SALARIO, J., Concur.
216 So. 3d 35 Florida District Court of Appeal, Second District (2017) Caution
Cited by 9 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

John Graham Dickie appeals his conviction and sentences for thirty counts of possessing child pornography, challenging the trial court's consideration of unsworn victim impact statements during sentencing. The Second District affirms, holding that Florida Statute § 921.143(1) does not preclude trial courts from considering unsworn victim impact statements when fashioning sentences, and certifies conflict with Patterson v. State.


Holding

The trial court did not abuse its discretion by considering unsworn victim impact statements at sentencing. Section 921.143(1) does not preclude trial courts from considering unsworn victim impact statements; the statute merely requires that courts permit victims to appear under oath if they choose, but does not restrict courts from considering other information that may bear on the proper sentence.


Headnotes

[1] A sentencing court has broad discretion to consider any information that may bear on the proper sentence for a defendant.

[2] Florida Statute section 921.143(1) mandates that sentencing courts permit victims to make statements under oath, but does not preclude consideration of unsworn victim imp…

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Key Quotes

“The sentencing court ... must be permitted to consider any and all information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed.”

Establishes the broad discretion sentencing courts have to consider relevant information when imposing sentences

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Facts & Procedural History

Law enforcement found thousands of child pornography images on Dickie's laptop and encrypted flash drive pursuant to a valid search warrant. Dickie wa…

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Opinion of the Court
BADALAMENTI, Judge.

BADALAMENTI, Judge.

In this Anders1 appeal, John Graham Dickie appeals his judgment and sentences for thirty counts of possession of ten images of child pornography, at least one of which involved a movie of a child. §§ 775.0847(2), 827.071(5)(a), Fla. Stat. (2015). After Mr. Dickie’s Anders counsel filed a brief explaining that she could find no issues of arguable merit, we struck the Anders brief and ordered merits briefing. We affirm his judgment and sentences without comment and write only to address whether the trial court’s consideration of unsworn victim impact statements during Mr. Dickie’s sentencing was improper pursuant to section 921.143(l)(a)-(b), Florida Statutes (2015), and Patterson v. State, 994 So.2d 428, 429 (Fla. 1st DCA 2008). Having considered the merits briefs submitted by both Mr. Dickie and the State, we hold that the trial court did not abuse its discretion by considering the un-sworn victim impact statements when fashioning Mr. Dickie’s sentences.

Mr. Dickie was arrested by the Sarasota County Sheriffs Office (SCSO) after SCSO found “literally thousands” of images of child pornography on Mr. Dickie’s laptop and encrypted flash drive, pursuant to a valid search warrant. Mr. Dickie was cooperative and confessed that he was in possession of child pornography. Based on the images seized from his apartment, the State charged Mr. Dickie with thirty separate counts of possessing ten images of child pornography, at least one of which involved a movie of a child. Mr. Dickie subsequently entered an open plea of no contest on all thirty counts.

A two-day sentencing hearing was conducted by the trial court. On the first day of the sentencing hearing, Mr. Dickie asserted three possible downward departure grounds for the trial court to consider in fashioning his total sentence.

Germane to the discrete issue this court ordered to be briefed in this Anders appeal, the State sought to introduce several victim impact statements into evidence for the trial court’s consideration. The statements were collected through the FBI’s Child Victim Identification Program. As the State explained, the FBI reuses the same victim impact statements across proceedings because child pornography traf*37fickers often organize their pornography by “series”—a set of images taken of the same victim or victims over time. A popular series may remain in circulation on the internet long after its creation.

The victim impact statements in this case were drafted by the child victims (and in some cases, parents of the child victims) depicted in five different series. Images from each of these series were found in Mr. Dickie’s apartment. Mr. Dick-ie objected to the introduction of the victim impact statements on multiple grounds, one of which was that the statements were not taken under oath.2 The trial court reserved ruling on the victim impact statements’ admissibility.

On the second day of the sentencing hearing, the trial court ruled that the victim impact statements were admissible for sentencing purposes. Prior to the parties’ closing arguments, the trial court indicated that it would recess specifically to review the victim impact statements because it had not yet done so.

Upon reconvening the sentencing hearing, the parties presented their closing arguments and the trial court indicated that it “had reviewed everything given to it.” The trial court then denied Mr. Dick-ie’s request for downward departure and sentenced him to a total of 397.5 months’ imprisonment. Pursuant to our order for merits briefing, Mr. Dickie argues that section 921,143(1) acts as a bar to the admission of unsworn victim impact statements at sentencing, and therefore the trial court erred in considering such statements. We disagree.

It is well settled that “[a] sentencing court has wide discretion regarding the factors it may consider when imposing a sentence.” Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009). “The sentencing court ... must be permitted to consider any and all information that reasonably might bear on the proper sentence for a particular defendant, given the crime committed.” Howard v. State, 820 So.2d 337, 340 (Fla. 4th DCA 2002) (quoting Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984)).

The plain language of section 921.143(1) does nothing to restrict the type of information that a court may consider when fashioning a criminal defendant’s sentence. In pertinent part, section 921.143(l)(a)-(b) provides that a sentencing court “shall permit the victim of [a] crime” to “[ajppear *38before the sentencing court for the purpose of making a statement under oath for the record” and “[sjubmit a written statement under oath to the office of the state attorney.”3 (Emphasis added.) The statute’s plain language says nothing about what a sentencing court shall not permit, and courts have declined to read such restrictive verbiage into the statute. Cf. Smith v. State, 982 So.2d 69, 71-72 (Fla. 1st DCA 2008) (holding that section 921.143(1) did not bar the sentencing court from hearing testimony from the victim’s mother and sister, even though the text of the statute states that a court “shall permit” such testimony only if the victim is a minor or dead).

We conclude that section 921.148(1) was meant to create a narrow class of victim impact statements which the trial court shall permit to be heard prior to imposing a sentence. That is, the legislature mandated that the trial courts permit all victims of crimes the opportunity to be heard prior to the imposition of a criminal sentence, so long as the victims’ statements were made under oath. In so doing, the legislature did not sub silentio create a new sentencing doctrine preclud-mg trial courts from considering unsworn victim impact statements in fashioning a criminal sentence.4 The trial court must be permitted to consider, and afford the appropriate weight to, any constitutionally and statutorily permissible information that reasonably might bear on the proper sentence for a particular defendant. Howard, 820 So.2d at 340.5

The sole judicial opinion construing section 921.143(1) as a barrier to the admissibility of unsworn victim impact statements is Patterson, 994 So.2d at 429. The defendant in Patterson appealed from a summary denial of a motion for postconviction relief. Id. The First District affirmed the trial court’s summary denial of all the defendant’s postconviction issues, save for one; the defendant claimed his trial counsel was ineffective for failing to object to a letter from the victim’s brother which was not authenticated, handwritten, or signed. Id. In remanding for an evidentiary hearing on this ground, the First District read section 921.143(1) as a statute which “requires that the victim or family member either appear before the sentencing court under oath or submit a written statement *39under oath to the state attorney, neither of which occurred.” Patterson, 994 So.2d at 429 (emphasis added). Accordingly, the First District reversed the summary denial of this single issue.

The Patterson court’s construction of section 921.143(1) is unsupportable by the statute’s text. The plain language of section 921.143(1) does not impose any “requirement” on victims or their families. In fact, the word “require” does not appear in the statute at all. The only constraint section 921.143(1) creates is on trial courts, to the extent that the trial courts “shall permit” victims the opportunity to be heard so long as those victims make their statements under oath. The Patterson court’s interpretation of section 921.143(1) as “requiring” that only sworn statements of victims be considered by the trial courts markedly changes the meaning of the statute, encroaches on the legislature’s role to write the laws of our state, and therefore contravenes bedrock principles of separation of powers.

In fairness, we recognize that the Patterson opinion was meant only to be a concise reversal of a summary denial of postconviction relief. But the Patterson court’s construction of section 921.143(1) seems to have influenced legal scholars, who now regard Florida as a state which requires all victim impact statements to be sworn.6 We disagree with Patterson and the proposition that unsworn victim impact statements are per se inadmissible at sentencing hearings. Trial courts have the discretion to consider such statements, just as they did before passage of section 921.143(1). See Bracero, 10 So.3d at 665; Howard, 820 So.2d at 340.

We affirm Mr. Dickie’s convictions and sentences in all respects. The trial court did not err by considering unsworn victim impact statements in fashioning Mr. Dick-ie’s sentences. Section 921.143(1) does not preclude a trial court from considering unsworn victim impact statements while fashioning a criminal defendant’s sentence.

We certify conflict with the First District’s decision in Patterson.

Affirmed; conflict certified.

YILLANTI, C.J., and SALARIO, J., Concur.


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Citator

Cited By

  • State v. Hollinger, 253 So. 3d 1207 (Fla. 5th DCA 2018)
    …D for resentencing. EVANDER, BERGER and WALLIS, JJ., concur. The author of the victim's statement testified at the sentencing hearing thereby allowing Hollinger an opportunity to question her as to the victim impact statement. See Dickie v. State, 216 So. 3d 35, 38 (Fla. 2d DCA 2017) (finding trial court could properly consider unsworn victim impact statement to fashion sentence). But see State v. Milici, 219 So. 3d 117, 122 (Fla. 5th DCA 2017) (finding no competent, substantial evidence to support remors…
  • Baugh v. State, 253 So. 3d 761 (Fla. 1st DCA 2018)
  • Taylor v. State, 264 So. 3d 1135 (Fla. 4th DCA 2019)
    …curred in this case. Furthermore, it is apparent that the sentencing judge relied on the erroneously admitted evidence when imposing appellant’s sentence. Id. More recently, the Second District certified conflict with Patterson in Dickie v. State, 216 So. 3d 35 (Fla. 2d DCA 2017). In Dickie, the Second District concluded that the circuit court did not abuse its discretion when it considered several unsworn victim impact statements at sentencing. Id. at 39. The Second District reasoned: The plain langua…

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