Yisrael v. State , 1D10–3029.
Decision Date | 22 July 2011 |
Docket Number | No. 1D10–3029.,1D10–3029. |
Citation | 65 So.3d 1177 |
Parties | Yeshuwa YISRAEL, Appellant,v.STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.PER CURIAM.
Yeshuwa Yisrael seeks review of his sentence for familial or custodial sexual battery. We vacate the 30–year sentence and remand for sentencing before a different judge because the trial court's remarks before pronouncing the sentence are reasonably construed as impermissible comments on charges for which Yisrael has not been tried, amounting to a denial of due process and fundamental error.
Fundamental error occurs where a trial court considers constitutionally impermissible factors when imposing a sentence. See, e.g., Nawaz v. State, 28 So.3d 122, 124–25 (Fla. 1st DCA 2010) ( ); Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010) ( ).1 Consideration of pending or dismissed charges during sentencing results in a denial of the defendant's due process rights. See Gray v. State, 964 So.2d 884 (Fla. 2d DCA 2007) ( ); Seays v. State, 789 So.2d 1209, 1210 (Fla. 4th DCA 2001) ( ); cf. State v. Potts, 526 So.2d 63 (Fla.1988) ().
At the sentencing hearing, the trial court questioned Yisrael about two other charges for sexual battery (one pending and the other dismissed because, according to the prosecution, the victim would not testify):
Shortly after questioning Yisrael, the court imposed the maximum authorized sentence of 30 years with the following additional remark on the other charges:
There [are] other victims apparently that don't want to testify. So the Court is going to sentence you to 30 years' Florida State Prison with mandatory court costs.
The court's remark that there were “other victims apparently that don't...
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