Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garcia v. State

Florida Court of Appeals, Fourth District

August 7, 2019

TONY GARCIA, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 14CF012520AMB.

          Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III, Assistant Attorney General, West Palm Beach, for appellee.

          TAYLOR, J.

         Appellant, 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.

         Appellant's 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.

         Appellant's 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.

         At the 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 arrest.[1]

         The trial court denied appellant's motion for downward departure and sentenced appellant to seven years in prison, stating:

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 is requesting.

         Regarding 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 sentencing him.

         A trial 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).

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.