final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No.
Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
pled guilty to a violation of probation imposed after his
convictions for two counts of dealing in stolen property and
two counts of giving false ownership or identification
information to a secondhand dealer. The trial court sentenced
him to fifteen years concurrent on each of the counts for
dealing in stolen property and to five year concurrent
sentences for the remaining charges. We reverse the sentences
because the trial court departed from a position of
neutrality in the sentencing proceeding. Appellant also
contends that in sentencing him the court erred in
considering juvenile dispositions more than five years old,
which were included on his scoresheet. We disagree, as prior
convictions may be considered, even though they cannot be
scored for purposes of determining the lowest permissible
sentence under the Criminal Punishment Code. We remand for
resentencing before another judge.
2011, appellant was charged by information with two counts of
dealing in stolen property and two counts of giving false
ownership or identification information to a secondhand
dealer. Appellant pled to the charges and was adjudicated
guilty. He was sentenced to three years in prison for all
counts, followed by two years of probation, and was ordered
to pay restitution.
probation was set to expire in July 2016. However, in
November 2015, appellant's probation officer filed a
probation violation report for violations including: failure
to report to his probation officer; change of residence
without consent; and failure to pay restitution and other
costs. The officer alleged that appellant absconded and that
his whereabouts were unknown. In the addendum to the
violation report, new charges were added, including leaving
his county of residence without permission and being arrested
for possession of heroin.
November 2016, the trial court held an initial hearing on
appellant's VOP. The prosecutor told the judge that plea
offers had been made but were now revoked. After appellant
rejected an offer of an eight year cap, the State offered
appellant a straight eight year prison term, but appellant
rejected that offer as well. Appellant told the court that he
thought the eight year cap offer was still open, partially
because of his change of attorneys due to his dissatisfaction
with his first attorney. The court then questioned appellant
about the two offers. While appellant said he would take the
eight year cap today, the court was not inclined to accept a
capped sentence. The court asked appellant whether he would
take the straight eight years. After discussing it with his
attorney, appellant rejected the court's offer.
subsequent hearing, appellant entered an open plea, admitting
the violations, except the possession of heroin charge which
the State dropped. The court stated that based on the
underlying offenses and appellant's scoresheet, appellant
faced a sentence between 13.2 months and forty years in
court reviewed appellant's sentencing scoresheet which
included numerous juvenile dispositions, all of which were
more than five years old. Appellant then testified, stating
that he was homeless and turned himself in after the VOP
warrant was issued. Appellant testified that he wished to
receive treatment, and if released on probation, he would
live with his grandfather. He stated that the victims of
"[e]very case [he] ever had" were his family. The
prosecutor cross-examined him on his record, listing various
charges. Appellant could not remember whether all the
juvenile charges were against family members.
counsel then called appellant's grandfather to testify.
The grandfather stated that appellant's family did not
want him to go back to jail. The court, not the
prosecutor, asked the grandfather if appellant was a danger
to the community, and he responded, "Absolutely
court began to question the grandfather about appellant's
juvenile and adult criminal record. Appellant's juvenile
dispositions included burglary of a dwelling, grand theft of
a vehicle, forgery, assault, and improper exhibition of a
weapon. The court commented on appellant's two burglaries
of a dwelling, juvenile dispositions, and the grandfather and
appellant responded that those incidents occurred at
appellant's mother's house. Appellant told the court
that the grand theft of a vehicle charge was from when he was
a juvenile. The court stated, "It counts though,
correct. Whose car did he steal?" The grandfather and
appellant admitted that appellant took the grandfather's
van. The court then asked about the juvenile forgery
disposition, and the grandfather responded that appellant
took his checks. The court asked about two other grand theft
charges, adult offenses, but the grandfather told the court
that he did not know about those offenses. The following
exchange took place:
THE COURT: Two other - two other grand thefts, are you
familiar with those?
GRANDFATHER: You'll have to tell me what they are.
THE COURT: I don't know, I'm asking you. Do you know
what they are?
THE DEFENDANT: I don't - one was - one was -
THE COURT: I'm not asking you, I'm asking [your
GRANDFATHER: Sir, I don't know.
THE COURT: Cause you're coming into my courtroom and
you're saying he's not a danger to anyone else.
GRANDFATHER: I - I don't think -
THE COURT: He's never victimized anybody else?
GRANDFATHER: No, not that I know of.
THE COURT: Not that you know of.
THE COURT: Is your lack of knowledge intentional or