final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Samantha Schosberg Feuer, Judge; L.T. Case
Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Paul Patti, III,
Assistant Attorney General, West Palm Beach, for appellee.
Tony Garcia, appeals his conviction and sentence for
first-degree arson of a dwelling. We affirm appellant's
conviction without further comment, but we reverse for
resentencing. Although we disagree with appellant's
argument that the trial court imposed a vindictive sentence
after participating in plea discussions, we conclude that
appellant's due process rights were violated because his
sentence may have been based, at least in part, on an
impermissible sentencing factor.
first trial on the arson charge resulted in a hung jury.
Subsequently, at a bond revocation hearing, the State
presented evidence that appellant had threatened a
prosecution witness after the first trial.
second trial resulted in a guilty verdict. At sentencing,
appellant moved for a downward departure sentence. The State
filed a sentencing memorandum requesting that the trial court
impose a sentence of seven years in prison. In support of its
recommendation, the State cited the facts of the underlying
crime as well as appellant's post-arrest conduct,
including threatening State witnesses. Attached to the
State's sentencing memorandum was a CD containing
recorded jail calls in which appellant stated that he wished
to harm a different State witness.
sentencing hearing, the prosecution relied upon its written
sentencing recommendation, argued that a downward departure
was not warranted, asserted that appellant's offense
"risked the lives of firefighters and his
neighbors," and emphasized appellant's conduct of
threatening the State's witnesses after his
trial court denied appellant's motion for downward
departure and sentenced appellant to seven years in prison,
Now, based on all the evidence, the severity of the crime,
the issues that were testified to, this is [a] very, very sad
situation all around, it really is. But even if I could
depart, I do not believe I should depart and therefore,
I'm sentencing Mr. Garcia to the 84 months that the state
his sentence, appellant mainly argues on appeal that the
trial court imposed a vindictive sentence, but he also argues
that his sentence was influenced by impermissible sentencing
factors. Without further comment, we reject appellant's
argument that the trial court imposed a vindictive sentence.
We agree, however, with appellant's argument that the
trial court may have considered an impermissible factor in
court's consideration of an impermissible sentencing
factor constitutes fundamental error in the sentencing
process, which may be raised for the first time on direct
appeal. Hillary v. State, 232 So.3d 3, 4 (Fla. 4th
DCA 2017). "Whether a trial court violates a
defendant's due process rights by considering
impermissible factors in sentencing is a question of law
subject to de novo review." Baehren v. State,
234 So.3d 799, 801 (Fla. 4th DCA 2018).
Norvil v. State, 191 So.3d 406, 407 (Fla. 2016), the
Florida Supreme Court held that "a trial court may not
consider a subsequent arrest without conviction during
sentencing for the primary offense." The Florida Supreme
Court looked to the Criminal Punishment Code
("CPC"), including the statute governing PSI
reports, in determining the factors that constitute
appropriate sentencing considerations. Id. at 409.
The court reasoned that "[t]he CPC is unambiguous
concerning the factors a trial court may consider in
sentencing a defendant" and that the legislature did not
include subsequent arrests as a ...