HERBERT LEON MANAGO, JR.

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

Case No. 5D2024-1343 LT Case No. 2005-034779-CFAES

HERBERT LEON MANAGO, JR.,

Appellant,

V.

STATE OF FLORIDA,

Appellee.

On appeal from the Circuit Court for Volusia County. Karen A. Foxman, Judge.

Matthew R. McLain, of McLain Law, P.A., Longwood, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Daniel

P. Caldwell, Assistant Attorney General, Daytona Beach, for

Appellee.

May 12, 2026

WALLIS, J.

Herbert Leon Manago, Jr. (Appellant) appeals his second resentencing following his jury trial and convictions for firstdegree felony murder, a capital felony,¹ and carjacking with a firearm. Appellant raises four grounds of trial court error. We affirm and write to explain why it was not error for the trial judge to admit and consider Appellant's disciplinary records from prison at the resentencing hearing.

Appellant was seventeen years old when he committed the crimes for which he was convicted. He was originally sentenced to life in prison for first-degree felony murder and thirty years in prison for carjacking with a firearm. In 2016, Appellant filed a resentencing petition pursuant to the new sentencing scheme for juvenile capital felony offenders. Appellant was subsequently resentenced; however, that sentence was reversed and the matter was remanded for a second resentencing hearing. See Manago v. State, 379 So. 3d 1218 (Fla. 5th DCA 2024).

Due to Appellant's age at the time of the offense, he was not eligible for the death penalty; however, under section 921.1401, Florida Statutes, which is titled “Sentence of life imprisonment for persons who are under the age of 18 years at the time of the offense; sentencing proceedings," he again faced the possibility of receiving a life imprisonment sentence. This statute directs a trial court to “consider factors relevant to the offense and the defendant's youth and attendant circumstances" and provides a non-exclusive list of such factors for a trial court to consider, including "[t]he possibility of rehabilitating the defendant." § 921.1401(2)(j), Fla. Stat.

Prior to the subject second resentencing hearing, the State filed a Notice of Intent to Rely upon Business Record Certifications pursuant to sections 90.803(6) and 90.902(11), Florida Statutes, for Disciplinary Records from the Volusia County Department of Corrections. Appellant opposed the admissibility of the records. Of relevance here, Appellant claimed that the disciplinary records were evidence of his subsequent criminal behavior without a conviction and admitting them at the hearing would violate his due process rights, citing to both Norvil v. State, 191 So. 3d 406 (Fla.

2016), and Barnes v. State, 227 So. 3d 216 (Fla. 5th DCA 2017), as support. The trial court admitted the disciplinary records over Appellant's objection.

After conducting the second resentencing hearing pursuant to section 921.1401, Florida Statutes, the trial court sentenced Appellant to: (1) life in prison on the first-degree murder charge with a sentence review hearing after 15 years; and (2) 30 years in prison on the carjacking with a firearm charge with a sentence review hearing after 20 years.

The resentencing hearing that is the subject of this appeal is a de novo proceeding, see Wilson v. State, 276 So. 3d 454, 456 (Fla. 5th DCA 2019), where "the full panoply of due process considerations attach.” State v. Fleming, 61 So. 3d 399, 406 (Fla. 2011) (quoting State v. Scott, 439 So. 2d 219, 220 (Fla. 1983)). Not only is the defendant “entitled to produce additional evidence at [the] hearing not presented at his earlier sentencing” with “the resentencing court [not being] limited to the evidence presented, or not presented, at the original sentencing,” Branton v. State, 187 So. 3d 382, 385 (Fla. 5th DCA 2016), but the State may also present additional evidence at the resentencing hearing, Mann v. State, 453 So. 2d 784, 786 (Fla. 1984) (recognizing that where remand directs a new sentencing proceeding, both sides may present additional evidence), which it did here.

More particularly, in arguing that Appellant should again be sentenced to life in prison for the first-degree murder that he committed, the State, over objection, admitted into evidence numerous disciplinary records concerning Appellant to show that, under section 921.1401(2)(j), there was little possibility that Appellant could be rehabilitated. Fifteen separate disciplinary reports regarding Appellant's behavior in prison were admitted into evidence. The majority of the incidents described in these reports did not involve any type of criminal behavior. However, two of the disciplinary reports showed that Appellant allegedly violated prison rules by committing a battery on another inmate, and a third disciplinary report showed that Appellant allegedly

committed a lewd or lascivious act in front of a female dental hygienist.³

In reviewing whether this evidentiary ruling by the trial court was an abuse of discretion,4 context is important. Appellant has spent his entire adult life incarcerated in Florida's Department of Corrections. Appellant's behavior in prison, whether good or problematic, during the intervening eighteen years between his conviction and resentencing, could be informative to a trial court in assessing Appellant's potential for rehabilitation.

Appellant's argument under Norvil, both here and below, is straightforward-his due process rights were violated when the trial court considered this “unsubstantiated conduct" described in the disciplinary reports because he was never arrested, let alone convicted, for any battery or lewd or lascivious conduct.

In State v. Garcia, 346 So. 3d 581, 586 n.5 (Fla. 2022), the Florida Supreme Court explained that the due process concern for a trial court considering evidence of a subsequent arrest when sentencing for an earlier conviction is that an arrest need only be supported by a determination of probable cause. Here, however, as reflected by the disciplinary reports admitted into evidence, Appellant did receive due process during the administrative proceedings conducted in prison to determine whether his behavior had violated the prison disciplinary rules. Appellant was able to contest the charges with his own evidence, including that of any witnesses. And, if found under the preponderance of the evidence standard to have committed the charged violation of prison rules and regulations, Appellant was able to pursue an administrative appeal within the prison system. Then, if unsatisfied with this result, Appellant could have pursued redress through a judicial

proceeding, if timely instituted. See D'Amico v. Clemmons, 298 So. 3d 114, 115 (Fla. 1st DCA 2020).

Extrapolating on Appellant's argument, and by way of example, had Appellant, during the year leading up to his resentencing hearing, been found by a preponderance of the evidence to have violated prison rules and regulations by committing ten separate acts of battery upon fellow inmates, this evidence could not be considered by the trial court unless the State independently chose to prosecute him and ultimately secured convictions for misdemeanor battery, an altogether unlikely use of the State's time and expense as Appellant was then serving life imprisonment. This panel, being comprised of former circuit judges who presided over similar criminal dockets, views such temporally recent events as highly relevant when assessing a defendant's potential for rehabilitation, as required under section 921.1401(2)(j).

Trial judges in this country have had a long history of exercising wide discretion in the type and source of evidence that they can consider when fashioning a lawful sentence. As the United States Supreme Court observed:

[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and

extent of punishment to be imposed within limits fixed by law.

Williams v. People of State of N.Y., 337 U.S. 241, 246 (1949).

These disciplinary reports are proper sources of evidence used by the trial court in its discretion, when determining Appellant's punishment.⁶ State, 235 So. 3d 1037 (Fla. 2d DCA 2018). We, therefore, certify conflict with the Love decision.

AFFIRMED.

LAMBERT and HARRIS, JJ., concur.