Charles v. State

204 So. 3d 63, 2016 Fla. App. LEXIS 15940

Opinions

On Appellee’s Motion Foe Rehearing

FORST, J.

We grant the Motion for Rehearing filed by Appellee the State of Florida. We withdraw our previously issued opinion dated May 31,2016, and replace it with the following.¹

Futo Charles appeals his convictions and sentences for several gang-related crimes. We affirm the convictions without comment and write only to address the propriety of the sentencing process. Appellant argues his sentences should be reversed because they may be based on improper sentencing considerations. We disagree and therefore affirm the sentences.

Background

Appellant was indicted along with several co-defendants on allegations, that he was a member of the “Top 6” gang, a violent criminal enterprise operating in Palm Beach County. Appellant initially cooperated with the authorities in hopes of securing a plea agreement. The record reveals that two plea agreements were reached—the first imposing an eight-year sentence and the second imposing a fifteen-year sentence. Both agreements were rejected by Judge Karen Miller, who had presided over the trials of two of Appellant’s co-defendants.² At his change of plea hearing, the lead investigator of the Top 6 gang testified that Charles’s cooperation had been instrumental in dismantling the gang. The investigator, along with the State, urged the court to accept the plea agreement imposing the fifteen-year sentence so that Appellant could continue to cooperate with the authorities. Despite this testimony, Judge Miller would not accept the plea.

After a two-week trial, the jury found Appellant guilty of racketeering, conspiracy to commit racketeering, possession of Ecstasy/MDMA, and possession of marijuana. He was also convicted of twelve predicate offenses, but was found not guilty of all the predicate offenses involving gun violence—aggravated assault with a firearm; shooting into a building; felon in possession of firearm or ammunition; and shooting into an occupied vehicle.

According to his scoresheet, Appellant’s lowest permissible sentence was 79.8 months; The State urged the court to impose the maximum sentence based on Appellant’s lengthy prior record and to “send a clear message to everyone who decides to participate in a violent criminal organization” that “a life in crime does not pay.” Following argument by both sides, and without any comment or elaboration, Judge Miller sentenced Appellant to nearly sixty-six’ years in prison.³ This was the maximum possible sentence within the range set by the Criminal Punishment Code (“CPC”).

Analysis

At the outset, we make particular note of the decisions by the State, to request a sentence of nearly sixty-six years, and the trial court, to grant this request. The latter imposed the maximum possible sentence, ruling that Appellant’s sentences were to run consecutively, rather than concurrently, which seems to be the norm. See § 921.16(1), Fla. Stat. (2000) (setting the default for crimes charged together as concurrent).

. Even though the State proposed, pretrial, eight and fifteen year sentences as a reward for Appellant’s assistance, after his conviction it sought the maximum penalty, a nearly sixty-six year sentence, notwithstanding Appellant’s assistance. Nonetheless, there does not appear to be a legal remedy to address the concerns raised by the conduct of the State Attorney and the trial court. Appellant has failed to establish that the trial court abused its discretion in rejecting the two plea deals (and there is no rule addressing ineffective assistance of opposing counsel), and the sentences imposed are within the sentencing guidelines. The only questions concern whether the trial court, in response to the State’s request that the court send a message, considered deterrence as a sentencing factor and, if it did, whether that violated Appellant’s due process rights, despite the sentence being within the sentencing guidelines.

Addressing the speculation first, the trial judge made no comment following the “send a message” statement that indicated she would consider the State’s request. “[TJrial judges are routinely made aware of information which may not be properly considered in determining a cause. Our judicial system is dependent upon the ability of trial judges to disregard improper information and to adhere to the requirements- of the law in deciding a case or in imposing a sentence.” Harvard v. State, 414 So.2d 1032, 1034 (Fla.1982). There is no evidence in the record that the trial court was, in any manner, influenced by the State’s “send a message” entreaty.

As to the sentence itself, “the general rule in Florida is that when a sentence is within statutory limits, it is not subject to review by an appellate court.” Howard v. State, 820 So.2d 337, 339 (Fla. 4th DCA 2002). However, when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant’s due process rights. See, e.g., Seays v. State, 789 So.2d 1209, 1210 (Fla. 4th DCA 2001). Our standard of review is de novo. Cromartie v. State, 70 So.3d 559, 563 (Fla.2011).

The Florida Supreme Court has recently held “that the CPC is unambiguous concerning the factors a trial court may consider in sentencing a defendant.” Norvil v. State, 191 So.3d 406, 409 (Fla.2016). Under the CPC, the “primary purpose” of sentencing is “to punish the offender.” § 921.002(l)(b), Fla. Stat. (2011).⁴

Deterrence, along with retribution, is one of “the traditional aims of punishment.” ’ Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Goad v. Fla. Dept, of Corr., 845 So.2d 880, 884 (Fla.2003). “The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct, 2800, 41 L.Ed.2d 495 (1974) (emphasis added). This view of deterrence as a legitimate consideration in sentencing has been recognized in Florida both before and since the adoption of the CPC. See, e.g., Mendenhall v. State, 48 So.3d 740, 746 (Fla.2010) (“[I]n enacting the 10-20-Life statute, the Legislature ‘has very clearly mandated that it is the policy of this State to deter the criminal use of firearms.’” (quoting McDonald v. State, 957 So.2d 605, 611 (Fla.2007))); State v. Brewer, 767 So.2d 1249, 1253 (Fla. 5th DCA 2000) (stating that “[t]here are four penological goals involved in criminal sentencing: retribution, deterrence, incapacitation, and rehabilitation”); Boyd v. State, 546 So.2d 132, 133 (Fla. 4th DCA 1989) (noting that “one purpose of punishment is deterrence, as it surely must be”), quashed on other grounds, 558 So.2d 1025 (Fla.1990); Freeman v. State, 382 So.2d 1307, 1308 (Fla. 3d DCA 1980) (“A sentence may be imposed for one or more of the following purposes: (a) to punish; (b) to deter similar criminal acts; (c) to protect society; or (d) to rehabilitate.”)-

Thus, deterrence, both general (“send a message to the community”) and specific (send a message to the individual being sentenced), is not merely one factor amidst the sea of relevant sentencing considerations; it is a key component of punishment itself—-the “primary purpose” of sentencing under the CPC. The dissent’s construction of the term “punishment” is too narrow.⁵

We noté it is true that Florida’s appellate courts have held that a trial court may not impose a departure sentence simply because the court believes it will serve as a deterrent to others or that it will send a message to the community. E.g., Wilson v. State, 524 So.2d 1161, 1162 (Fla. 2d DCA 1988); Mitchell v. State, 507 So.2d 686, 688 (Fla. 1st DCA 1987). Appellate courts have also held that, in juvenile cases, the trial court may not depart from the recommended sentence of the Department of Juvenile Justice (“DJJ”) in order to send a deterrent message to others in the community. E.g., C.C.B. v. State, 828 So.2d 429, 431 (Fla. 1st DCA 2002). But these cases are inapplicable here because the instant case does not involve a departure sentence. Instead, the sentences imposed for each offense were under the maximum possible sentences. The rationales behind the rules for departure—preventing every crime from being aggravated and specially tailoring juvenile sentences to the needs of the child—do not apply when the sentence imposed- is within the range allowed for an adult’s sentence. See Whitmore v. State, 27 So.3d 168, 172-73 (Fla. 4th DCA 2010) (“In sentencing within the law’s minimum and maximum, the discretion afforded is about as broad as discretion can be for trial judges.”).

Conclusion

There is no evidence that the trial court acted upon the State’s request to “send a message to the community.” In any case, however;’ it is not impermissible for a sentence to be used as a means of general deterrence. Accordingly, we affirm.

Affirmed

LEVINE, J., concurs specially with opinion. GROSS, J., dissents with opinion.

Footnotes

1

. We deny the State's motion to certify questions of great public importance.

2

. Appellant’s co-defendants received sentences of twenty-five years each.

3

.Thirty years for racketeering, thirty years for conspiracy to commit racketeering, five yeárs for possession of Ecstasy/MDMA, and eleven months and twenty-nine days for possession of marijuana, all counts to run consecutively.

4

, Rehabilitation of the offender is another stated goal which is "subordinate to the goal of punishment.” § 921.002(l)(b), Fla. Stat. (2011).

5

. If punishment was construed to merely include societal retribution, there would be no basis for seat belt laws (which we acknowledge are non-criminal and thus not covered by the CPC). “Florida's Safety Belt Law" states that "[a]ny person who violates [that .law] commits a nonmoving'violation, punishable as [a noncriminal traffic infraction].” § 316,614(7)-(8), Fla. Stat. (2015) (emphasis added). Clearly, such punishment is not for the sake of societal retribution; the penalty is "in recognition of the fatalities and injuries attributed to unrestrained occupancy of motor vehicles” and for the purpose of deterrence.