SENTENCE
Adams v. State, 207 So.3d 252 (Fla. 5th DCA 2016) When a trial court imposes a new split sentence following a violation of probation, the law requires that the court give credit for any time previously served on probation if the new period of probation together with all other sanctions, including jail and prison credit, and the time previously served on probation total more than the statutory maximum for the underlying offense.
Allen v. State, 211 So.3d 48 (Fla. 4th DCA 2017) Trial courts are prohibited from penalizing a defendant for not admitting guilt a sentencing. This prohibition is designed to protect an individual’s right of appeal or prospects of post-conviction relief that might otherwise be jeopardized by rewarding a defendant’s admission of guilt following trial.
Andrews v. State, 207 So.3d 889 (Fla. 4th DCA 2017) Trial court was not permitted to consider defendant’s out of county residency as a sentencing factor for defendant convicted of armed burglary and related offenses. Imposing a stiffer sentence merely because the defendant did not reside in the county did not result in a sentence that was proportionate to the offense. (Note: this holding may apply to gypsies)
Lawton v. State, 207 So.3d 359 (Fla. 3rd DCA 2016) Trial court’s consideration of remorse constituted an impermissible factor in imposing a sentence where defendant did not file a motion for a downward departure based on rehabilitation or otherwise inject remorse into his argument for mitigation.
Fernandez v. State, 212 So.3d 494 (Fla. 2nd DCA 2017) Trial court was not permitted to consider defendant’s arrest for being a felon in possession of a firearm when imposing sentence on possession of cocaine conviction, as arrest occurred while on pretrial release in possession of cocaine case.
Guerra v. State, 212 So.3d 541 (Fla. 4th DCA 2017) Trial court could not subject defendant to cross-examination during his allocution at sentencing hearing after defendant’s open plea to solicitation to commit murder, armed home invasion robbery, and refusal to submit a DNA sample.
Kenner v. State, 208 So.3d 271 (Fla. 5th DCA 2016) A new sentence before a different judge was warranted in a murder case where the original judge commented during sentencing about the defendant’s attitude during trial as surly and noted that he had no job and failed to support his children when none of those factors were in evidence. Impermissible factors that the trial court may not consider during sentencing include a defendant’s assertion of his innocence and refusal to admit guilt. When the defendant denies committing the crime, it is generally improper for the sentencing court to consider the defendant’s lack of remorse.
Williams v. State, 1D15-1923 (Fla. 1st DCA 2016) A trial court reversibly errs when basing a sentence, even in part, on unsubstantiated allegations: “I believe that he has either been directly or indirectly involved in the threatening of witnesses in the cases against him, both in this case and in the past…”
State v. Jimenez, 173 So.3d 1020 (Fla. 3rd DCA 2015) When an initial sentence was illegal, at resentencing, the trial court may impose any sentence consistent with the sentencing laws in effect on the date of offense, even if it results in a harsher sentence.
Rankin v. State, 174 So.3d 1092 (Fla. 4th DCA 2015) While remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true. A trial court violates due process by using a protestation of innocence against a defendant. This applies to the penalty phase as well as to the guilt phase.
Harvey v. State, 156 So.3d 583 (Fla. 5th DCA 2015) A suspended sentence imposed at the time a defendant is placed on probation or community control is not an automatic sentence in the sense that the trial court is required to impose the suspended sentence in the event of a violation. Instead, the court retains the discretion and authority to impose any sentence it could otherwise have imposed. The trial court retains discretion to impose any sentence up to the suspended sentence previously issued.
Norvil v. State, 162 So.3d 3 (Fla. 4th DCA 2014) If a defendant has been acquitted of charges stemming from a prior or subsequent arrest, the sentencing court is prohibited from considering the arrest. Sentencing court may properly consider subsequent arrests and related charges, if relevant, in determining an appropriate sentence. Sentencing court must be mindful that the arrest and pending charges are not convictions or findings of guilt and refrain from placing undo emphasis on them at the sentencing hearing. Sentencing court could consider defendant’s subsequent arrest and charges at sentencing because of the following factors: (1) the new charge was relevant in that defendant was being sentenced for burglary while armed with weapon and subsequent arrest involving burglary of vehicle; (2) the allegations of criminal conduct were supported by evidence of the record; (3) the defendant had not been acquitted of the charge that arose from the subsequent arrest; (4) the record did not show that the trial court placed undo emphasis on the subsequent arrest and charge in imposing sentence; and (5) the defendant had an opportunity to explain or to present evidence on the issue of his prior and subsequent arrests.
Hawkins v. State, 138 So.3d 1196 (Fla. 2nd DCA 2014) Evidence failed to establish that defendant willfully violated his furlough agreement by failing to appear for sentencing as a result of an arrest. An arrest was an action by a police officer based on that officer’s evaluation of probable cause, not a willful action of the defendant. It is crucial that a trial court make a factual determination as to whether a defendant’s failure to appear at sentencing was willful, prior to ruling on whether said absence was violative of a negotiated plea agreement. Where a defendant’s failure to appear is found to be non-willful, the defendant is entitled to the bargained for mitigation of his sentence.
Macintosh v. State, 5D15-919 (Fla. 5th DCA Jan. 8, 2016) Orange County, Judge Lubet In this case, the trial court’s comments indicate that the sentence was influenced by its belief that MacIntosh 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.
Taylor v. State, 5D17-2259 (Fla. 5th DCA 2018) Where the State decides not to proceed on separate charges, a trial court is foreclosed from considering the conduct supporting those charges in sentencing.
Love v. State, 2D17-76 (Fla. 2nd DCA 2018) Even where a sentencing judge does not state on the record that he considered such when fashioning the sentence, incidents of misconduct occurring after the charged offense, some of which did not result in charges or arrests, were impermissible sentencing factors.
Baehern v. State, 4D16-364 (Fla. 4th DCA Jan. 10, 2018) Where a defendant is yet to be convicted in a separate case, a trial judge reversibly errs by considering that pending case in imposing sentence.
SENTENCING- SUBSEQUENT ARREST
Turner v. State, 261 So.3d 729 (Fla. 2nd DCA 2018) A trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.
SENTENCE
Adams v. State, 207 So.3d 252 (Fla. 5th DCA 2016) When a trial court imposes a new split sentence following a violation of probation, the law requires that the court give credit for any time previously served on probation if the new period of probation together with all other sanctions, including jail and prison credit, and the time previously served on probation total more than the statutory maximum for the underlying offense.
Allen v. State, 211 So.3d 48 (Fla. 4th DCA 2017) Trial courts are prohibited from penalizing a defendant for not admitting guilt a sentencing. This prohibition is designed to protect an individual’s right of appeal or prospects of post-conviction relief that might otherwise be jeopardized by rewarding a defendant’s admission of guilt following trial.
Andrews v. State, 207 So.3d 889 (Fla. 4th DCA 2017) Trial court was not permitted to consider defendant’s out of county residency as a sentencing factor for defendant convicted of armed burglary and related offenses. Imposing a stiffer sentence merely because the defendant did not reside in the county did not result in a sentence that was proportionate to the offense. (Note: this holding may apply to gypsies)
Lawton v. State, 207 So.3d 359 (Fla. 3rd DCA 2016) Trial court’s consideration of remorse constituted an impermissible factor in imposing a sentence where defendant did not file a motion for a downward departure based on rehabilitation or otherwise inject remorse into his argument for mitigation.
Fernandez v. State, 212 So.3d 494 (Fla. 2nd DCA 2017) Trial court was not permitted to consider defendant’s arrest for being a felon in possession of a firearm when imposing sentence on possession of cocaine conviction, as arrest occurred while on pretrial release in possession of cocaine case.
Guerra v. State, 212 So.3d 541 (Fla. 4th DCA 2017) Trial court could not subject defendant to cross-examination during his allocution at sentencing hearing after defendant’s open plea to solicitation to commit murder, armed home invasion robbery, and refusal to submit a DNA sample.
Kenner v. State, 208 So.3d 271 (Fla. 5th DCA 2016) A new sentence before a different judge was warranted in a murder case where the original judge commented during sentencing about the defendant’s attitude during trial as surly and noted that he had no job and failed to support his children when none of those factors were in evidence. Impermissible factors that the trial court may not consider during sentencing include a defendant’s assertion of his innocence and refusal to admit guilt. When the defendant denies committing the crime, it is generally improper for the sentencing court to consider the defendant’s lack of remorse.
Williams v. State, 1D15-1923 (Fla. 1st DCA 2016) A trial court reversibly errs when basing a sentence, even in part, on unsubstantiated allegations: “I believe that he has either been directly or indirectly involved in the threatening of witnesses in the cases against him, both in this case and in the past…”
State v. Jimenez, 173 So.3d 1020 (Fla. 3rd DCA 2015) When an initial sentence was illegal, at resentencing, the trial court may impose any sentence consistent with the sentencing laws in effect on the date of offense, even if it results in a harsher sentence.
Rankin v. State, 174 So.3d 1092 (Fla. 4th DCA 2015) While remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true. A trial court violates due process by using a protestation of innocence against a defendant. This applies to the penalty phase as well as to the guilt phase.
Harvey v. State, 156 So.3d 583 (Fla. 5th DCA 2015) A suspended sentence imposed at the time a defendant is placed on probation or community control is not an automatic sentence in the sense that the trial court is required to impose the suspended sentence in the event of a violation. Instead, the court retains the discretion and authority to impose any sentence it could otherwise have imposed. The trial court retains discretion to impose any sentence up to the suspended sentence previously issued.
Norvil v. State, 162 So.3d 3 (Fla. 4th DCA 2014) If a defendant has been acquitted of charges stemming from a prior or subsequent arrest, the sentencing court is prohibited from considering the arrest. Sentencing court may properly consider subsequent arrests and related charges, if relevant, in determining an appropriate sentence. Sentencing court must be mindful that the arrest and pending charges are not convictions or findings of guilt and refrain from placing undo emphasis on them at the sentencing hearing. Sentencing court could consider defendant’s subsequent arrest and charges at sentencing because of the following factors: (1) the new charge was relevant in that defendant was being sentenced for burglary while armed with weapon and subsequent arrest involving burglary of vehicle; (2) the allegations of criminal conduct were supported by evidence of the record; (3) the defendant had not been acquitted of the charge that arose from the subsequent arrest; (4) the record did not show that the trial court placed undo emphasis on the subsequent arrest and charge in imposing sentence; and (5) the defendant had an opportunity to explain or to present evidence on the issue of his prior and subsequent arrests.
Hawkins v. State, 138 So.3d 1196 (Fla. 2nd DCA 2014) Evidence failed to establish that defendant willfully violated his furlough agreement by failing to appear for sentencing as a result of an arrest. An arrest was an action by a police officer based on that officer’s evaluation of probable cause, not a willful action of the defendant. It is crucial that a trial court make a factual determination as to whether a defendant’s failure to appear at sentencing was willful, prior to ruling on whether said absence was violative of a negotiated plea agreement. Where a defendant’s failure to appear is found to be non-willful, the defendant is entitled to the bargained for mitigation of his sentence.
Macintosh v. State, 5D15-919 (Fla. 5th DCA Jan. 8, 2016) Orange County, Judge Lubet In this case, the trial court’s comments indicate that the sentence was influenced by its belief that MacIntosh 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.
Taylor v. State, 5D17-2259 (Fla. 5th DCA 2018) Where the State decides not to proceed on separate charges, a trial court is foreclosed from considering the conduct supporting those charges in sentencing.
Love v. State, 2D17-76 (Fla. 2nd DCA 2018) Even where a sentencing judge does not state on the record that he considered such when fashioning the sentence, incidents of misconduct occurring after the charged offense, some of which did not result in charges or arrests, were impermissible sentencing factors.
Baehern v. State, 4D16-364 (Fla. 4th DCA Jan. 10, 2018) Where a defendant is yet to be convicted in a separate case, a trial judge reversibly errs by considering that pending case in imposing sentence.
SENTENCING- SUBSEQUENT ARREST
Turner v. State, 261 So.3d 729 (Fla. 2nd DCA 2018) A trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.
