Mercado v. State
Docket Number | 2D21-3444 |
Decision Date | 13 January 2023 |
Parties | SHAUN JAI MERCADO, Appellant, v. STATE OF FLORIDA, Appellee. |
Court | Florida District Court of Appeals |
Appeal from the County Court for Pasco County; Anne Wansboro, Judge.
Howard L. Dimmig, II, Public Defender, and Joanna Beth Connor Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley Tampa, for Appellee. La
Shaun Jai Mercado appeals his judgments and sentences in four cases. We have jurisdiction. See Fla. R. App. P 9.030(b)(1)(A); 9.140(b)(1)(A), (F). He claims that the trial court considered impermissible factors in imposing the sentences. We affirm.
Mr Mercado and his partner had an extended, but tumultuous, personal relationship. Eventually, they separated, and she began dating someone new. Mr. Mercado did not welcome this development. His behavior prompted his now former partner to obtain a domestic violence injunction.
Unfazed, Mr. Mercado continued to visit her home and persistently contact her. Ultimately, the State charged him in five different cases with a host of misdemeanor offenses, including multiple violations of the injunction. Mr. Mercado pleaded guilty in each case. The trial court delayed sentencing to allow Mr. Mercado an opportunity to prepare mitigation evidence.
The sentencing date arrived. Mr. Mercado offered no mitigation evidence. Instead, he blamed his former partner for his misdeeds and misfortunes. In response, and over Mr. Mercado's objection, the State reported that between the plea and sentencing hearings, Mr. Mercado's behavior had become more dangerous and threatening.
Specifically, the State presented text messages sent to his former partner's father threatening to shoot and kill him, along with photos of various weapons. The State offered additional threatening text messages sent to the former partner. The State also told the trial court that the former partner's boyfriend's house had been "shot up." The prosecutor informed the trial court that detectives were still investigating these uncharged incidents.
At the conclusion of the sentencing hearing, Mr. Mercado requested one year of probation; the State asked for 364 days in jail followed by consecutive probationary terms. The trial court sentenced Mr. Mercado to concurrent one-year probationary terms.[1] Now, Mr. Mercado contends that the trial court violated his due process rights at sentencing by considering alleged postplea misconduct. See Norvil v. State, 191 So.3d 406, 410 (Fla. 2016) ( ); Tharp v. State, 273 So.3d 269, 271 (Fla. 2d DCA 2019) ( ); Nichols v. State, 283 So.3d 947, 950 (Fla. 2d DCA 2018) ().
At the outset, we reject the State's argument that Mr. Mercado did not preserve his claim for our review. Even if that were so, the alleged trial court error is fundamental. See Love v. State, 235 So.3d 1037, 1039 (Fla. 2d DCA 2018) . Accordingly, we proceed to the merits.
Our review is de novo. See State v. Garcia, 346 So.3d 581, 585 (Fla. 2022) ( . Consequently, "[w]e must examine the record to determine whether it 'may reasonably be read to suggest' that a defendant's sentence was the result, at least in part, of the consideration of impermissible factors." Mosley v. State, 198 So.3d 58, 60 (Fla. 2d DCA 2015) (quoting Moorer v. State, 926 So.2d 475, 477 (Fla. 1st DCA 2006)).
We cannot conclude that the trial court erred. The trial court succinctly pronounced its sentences:
"Ordinarily, when the trial court allegedly relies on improper sentencing considerations, the State must demonstrate that the trial court's sentencing decision was not so influenced." Turner v. State, 261 So.3d 729, 734 (Fla. 2d DCA 2019); see also N.D.W. v. State, 235 So.3d 1001, 1002 (Fla. 2d DCA 2017) ( ); Nichols, 283 So.3d at 950 .
Mr. Mercado's claim is untenable. Our record reflects no inkling that the trial court relied on impermissible factors. The trial court did not explicitly say, or even intimate, that the postplea conduct influenced its sentencing decisions. N.D.W., 235 So.3d at 1003 ( . And, we are reluctant to assume trial court misconduct. See Serrano v. State, 279 So.3d 296, 302 (Fla. 1st DCA 2019) ( ; see also Harvard v. State, 414 So.2d 1032, 1034 (Fla. 1982) ( .
Notably Mr. Mercado requested probation. The trial court obliged.[2]Had the trial court relied upon impermissible factors, we would expect more onerous punishments. Instead, we have sentences proposed by Mr. Mercado. See, e.g., Love, 235 So.3d at 1038 ("because the State presented evidence of impermissible sentencing factors and [defendant's] s for resentencing ...
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