Epprecht v. State, 84-494

• Decision Date: 06 May 1986
• Docket Number: No. 84-494,84-494
• Parties: 11 Fla. L. Weekly 1058 Wayne J. EPPRECHT, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 129

488 So.2d 129

11 Fla. L. Weekly 1058

Wayne J. EPPRECHT, Appellant, v. The STATE of Florida, Appellee.

No. 84-494.

District Court of Appeal of Florida,

Third District.

May 6, 1986.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.

Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.

DANIEL S. PEARSON, Judge.

The State and the defendant propose that the test to be applied by a reviewing court in respect to the primary sentencing issue here involved is that the State has the burden to show from the record as a whole that the trial judge did not rely upon impermissible considerations in passing sentence upon the defendant where portions of the record reflect that the trial judge may have so relied. We adopt this as the proper test and, applying it here, reverse the defendant's sentence and remand for resentencing before a different judge. ¹

The transcript of the sentencing hearing reveals, without dispute, that the trial court may have considered two impermissible factors in imposing sentence: its belief that the defendant likely had committed previous acts of violence although the defendant had never been charged with committing any such acts, much less convicted of committing such acts, and its belief that the defendant was guilty of an offense of which he had been acquitted.

In response to defense counsel's mitigating statement that the defendant had never injured anyone during any offense (the defendant having been convicted of two prior drugstore robberies), the court remarked, "He hasn't hurt anyone that we know about." When the defendant protested that "I never hurt anybody in my life," the trial judge said:

"Usually with people such as yourself, Mr. Epprecht, who have been found guilty in so many cases, there are probably many other charges that we don't even know about."

Additionally, the judge said that the defendant's attorney "has learned his craft well and has done an excellent job for you, Mr. Epprecht .... I know that he also represented you in another case where you were found not guilty, and I must tell you that I as the judge, I thought you were guilty of that charge."

Turning first to the trial court's candid statement of its belief in defendant's guilt in a prior case in which defendant had been acquitted, it is fundamental that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence. Townsend v. Burke, 334 U.S. 736, 740, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693 (1948). In Berry v. State, 458 So.2d 1155, 1156 (Fla. 1st DCA 1984), the court ordered a resentencing where "[t]he transcript of the sentencing hearing reflect[ed] that the trial judge had presided at Berry's previous trials which resulted in acquittals but that the trial judge was of the opinion that the juries were incorrect in their verdicts and that Berry was actually guilty of the prior offenses." See also Crosby v. State, 429 So.2d 421, 423 (Fla. 1st DCA 1983) (trial court consideration of defendant's prior arrests "not leading to convictions as evidence of guilt" required resentencing).

Turning next to the court's equally candid speculation that the defendant probably committed other crimes that we do not know about, it is clear that this too is an impermissible sentencing consideration. United States v. Cavazos, 530 F.2d 4 (5th Cir.1976); see also United States v. Tobias, 662 F.2d 381, 388 (5th Cir.1981), cert. denied, 457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982).

Because we are "not at liberty to assume that items given such emphasis by the sentencing court, did not...