Gibson v. State

• Decision Date: 27 July 2022
• Docket Number: 4D21-660
• Citation: 344 So.3d 32
• Parties: Charles Reginald GIBSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

344 So.3d 32

Charles Reginald GIBSON, Appellant,
v.
STATE of Florida, Appellee.

No. 4D21-660

District Court of Appeal of Florida, Fourth District.

[July 27, 2022]

Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner, Assistant Attorney General, West Palm Beach, for appellee.

Gerber, J.

The defendant, convicted of burglary of an occupied dwelling, appeals from the circuit court's imposition of the statutory maximum fifteen-year prison sentence after he violated probation a third time and the circuit court designated him as a dangerous violent felony offender of special concern. The defendant also appeals from the circuit court's imposition of a $500 public defender fee. The defendant argues the circuit court erred in two respects: (1) fundamentally, by considering during sentencing a prior sexual battery charge against the defendant for which he had been acquitted; and (2) by imposing the $500 public defender fee, where the record supported only a $400 public defender fee.

On the defendant's first argument, the record cannot reasonably be read to suggest that the circuit court considered the acquitted conduct in imposing the defendant's prison sentence. Therefore, we affirm that sentence. On the defendant's second argument, the state concedes the circuit court erred in imposing a $500 public defender fee. We agree with the state's concession, and therefore reverse on that argument only. We address each argument in turn.

1. The record cannot reasonably be read to suggest that the circuit court considered the acquitted conduct in imposing the defendant's prison sentence.

On the defendant's first argument, we apply de novo review. See Garcia v. State , 279 So. 3d 148, 150 (Fla. 4th DCA 2019) ("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. 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.") (citations and internal quotation marks omitted).

"The State bears the burden to show from the record as a whole that the trial court did not consider impermissible factors in rendering its sentence." Strong v. State , 254 So. 3d 428, 432 (Fla. 4th DCA 2018) (citation omitted). "We must examine the record to...