McGill v. State
Decision Date | 10 October 2014 |
Docket Number | No. 5D13–4552.,5D13–4552. |
Citation | 148 So.3d 531 |
Parties | Damiroquan McGILL, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Allan Campbell, Lake Mary, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
Damiroquan McGill appeals his twelve-year sentence for possession of a firearm by a delinquent, which was direct filed and adjudicated in adult court. Although the sentence was below the statutory maximum penalty, McGill correctly argues that the sentencing court violated his due process rights by basing his sentence, at least in part, on improper considerations. See Yisrael v. State, 65 So.3d 1177, 1178 (Fla. 1st DCA 2011) ( ); Crouse v. State, 101 So.3d 901, 903 (Fla. 4th DCA 2012), (court may consider “any and all information that reasonably might bear on the proper sentence,” it may not consider such constitutionally improper factors as “unsubstantiated allegations of misconduct” (citations omitted)) that while a sentencing ; cf. Jansson v. State, 399 So.2d 1061, 1064 (Fla. 4th DCA 1981) ( ). In this case, the judge's comments indicate that the sentence was influenced by the judge's belief that McGill had committed acts of robbery, based solely upon unsubstantiated allegations and prior charges that had not resulted in convictions. In addition, the judge indicated that the sentence was influenced by a belief that McGill was affiliated with a gang. Although this is a proper sentencing consideration, Crouse, 101 So.3d at 903, the trial judge improperly relied upon unsubstantiated allegations of McGill's gang involvement in the form of objected-to hearsay from a police detective. Id. ; see also Jackson v. State, 588 So.2d 1085, 1086 (Fla. 5th DCA 1991) ...
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