          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                   MIGUEL ANGEL ALFONSO-ROCHE,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-3689

                              [June 1, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Curtis Disque, Acting Circuit Judge; L.T. Case No.
432012CF001344B.

  Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The defendant appeals his conviction and sentence for grand theft of a
motor vehicle and first degree grand theft. He makes three arguments.
First, he argues the prosecutor committed fundamental error by
denigrating him during closing argument for asserting his right to a jury
trial. Second, he argues the evidence was insufficient to support the
charge of grand theft of a motor vehicle and his counsel was ineffective in
failing to move for a judgment of acquittal. Third, he argues the trial court
violated his constitutional rights in sentencing him to thirty years’
imprisonment on the first degree grand theft charge and five years’
imprisonment on the grand theft of a motor vehicle charge. We agree with
him on the second issue and reverse the conviction and sentence on the
grand theft of a motor vehicle charge. We affirm in all other respects.

   The State charged the defendant with three counts of grand theft in
varying degrees, which arose from the theft of one truck and two boats and
their engines. Testimony at trial revealed that a deputy discovered two
boats missing from the lot of an ocean engineering firm. The deputy
reported the incident, and began to canvass the area because stolen boats
were usually taken to a nearby remote area and stripped of their engines.

   The deputy returned to the ocean engineering firm and found padlocks
on the ground, which looked like they had been cut with bolt cutters. The
surveillance cameras were covered with black latex gloves. He then
noticed two pickup trucks pull out of a neighborhood across the street;
one was maroon and the other gray. This seemed suspicious because the
neighborhood was under development.

   The deputy pulled behind the maroon truck and identified the license
plate; the defendant owned the truck. Because the deputy could not stop
both trucks at the same time, he tried to identify the license plate on the
gray truck. As he tried to pass the maroon truck to view the license plate
number of the gray truck, the maroon truck blocked him from switching
lanes.

   The deputy turned on his “takedown” floodlights and flashed them into
the back of the maroon truck, where he saw a Yamaha outboard engine
cover for a boat engine. Oil also flew up onto the windshield of the deputy’s
car from the truck. The gray truck turned. The deputy reported the gray
truck to his sergeant, and continued to follow the maroon truck.

   The deputy initiated a traffic stop of the maroon truck after it ran a stop
sign. As he approached the driver’s side of the truck, he saw oil dripping
out of the bed of the truck onto the bumper, which was covered in oil. He
saw a boat engine in the back of the truck, smelled a strong odor of gas
coming from it, and saw oil and gas dripping from the lines of the engine
as if it had just been sliced or cut away from a boat. Bolt cutters, a box of
black gloves consistent with those found on the surveillance cameras, a
blow torch, and a stolen boat engine were found in the defendant’s truck.

   After receiving a call about the gray truck, a sergeant observed a truck
matching the description. When he attempted to stop the truck, the driver
would not pull over. The truck turned into the same undeveloped
neighborhood the deputy had seen it leave from earlier. The truck crashed
through the entrance gate and came to rest at a tree. The driver and
passenger exited the truck while it was still moving. The sergeant
apprehended the passenger; the driver fled the scene.

    The sergeant noticed the ignition of the gray truck had been “punched.”
Upon further investigation, law enforcement discovered the truck had been
stolen earlier in the evening. The sergeant located the two stolen boats
sitting on their trailers inside the undeveloped neighborhood. Two marine

                                      2
engines were found in the back of the gray truck along with numerous
tools, including screwdrivers and wrenches. In total, three engines from
the two stolen boats were recovered from the two trucks.

   The three stolen engines were purchased in May 2012 for $77,729.
Without the engines, one stolen boat was worth $50,000 and the other
was worth $30,000. The boat trailers were purchased in April 2012 for
$5,400 and $7,000. It cost $4,000 to reconnect the stolen engines to their
boats, and $3,943 to repair the stolen gray truck.

   After the State rested, defense counsel moved for judgment of acquittal,
but only on the charge for first degree grand theft of property, not on the
charge for theft of the gray truck. The court denied the motion. The
defense did not present any witnesses.

   The jury found the defendant guilty of grand theft of a motor vehicle
and first degree grand theft. The State nolle prossed the second degree
grand theft charge. The court adjudicated the defendant guilty and
sentenced him to five years’ imprisonment on the grand theft of the motor
vehicle charge and thirty years’ imprisonment on the first degree grand
theft charge, with the sentences to run consecutively. 1

   On appeal, the defendant argues his conviction for grand theft of a
motor vehicle should be reversed because there was no evidence that he
knew the gray truck was stolen or that he had any involvement in its theft.
He asserts that although defense counsel did not move for judgment of
acquittal, his conviction on that charge was fundamental error because of
the insufficiency of the evidence. In the alternative, he asserts trial
counsel was ineffective for failing to move for judgment of acquittal.

   The State responds that the defendant failed to preserve the issue for
appellate review. It argues that had the issue been preserved, the
defendant’s argument is still without merit because the evidence
established that the defendant knew the gray truck was stolen as he tried
to prevent the deputy from viewing the license plate on the gray truck, and
the ignition had been punched. Responding to the ineffective assistance


1The defendant twice moved to correct sentencing errors under Florida Rule of
Criminal Procedure 3.800(b)(2) arguing that sentencing under the Criminal
Punishment Code (“CPC”) violates the Due Process Clause, the CPC violates the
Cruel and Unusual Punishment Clause, and his sentence violated the Equal
Protection Clause because his co-defendant was sentenced to only fifteen years’
imprisonment. The trial court did not rule on those motions.


                                      3
of counsel argument, the State argues the claim is not cognizable on direct
appeal as the defendant failed to file a Rule 3.850 motion.

    We have de novo review of the denial of a motion for judgment of
acquittal. Ortiz v. State, 36 So. 3d 901, 902 (Fla. 4th DCA 2010) (citing
Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002)). Where defense counsel
fails to move for a judgment of acquittal, we review the issue for
fundamental error. Otero v. State, 807 So. 2d 666, 667 (Fla. 4th DCA
2001); see Andre v. State, 13 So. 3d 103, 105 (Fla. 4th DCA 2009).

    The defendant was convicted as a principal for the crime of grand theft
of a motor vehicle. § 812.014, Fla. Stat. (2014).

      To convict under a principals theory, the State is required to
      prove that “the defendant had a conscious intent that the
      criminal act be done and . . . the defendant did some act or
      said some word which was intended to and which did incite,
      cause, encourage, assist, or advise the other person or
      persons to actually commit or attempt to commit the crime.”

Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (omission in
original) (quoting Smith v. State, 76 So. 3d 1056, 1058 n.3 (Fla. 4th DCA
2011)). The essential elements of grand theft of a motor vehicle are the
following:

      (1) [T]he knowing and unlawful obtaining or use, or the
      knowing and unlawful endeavor to obtain or use, (2) the motor
      vehicle of another, (3) with intent to either temporarily or
      permanently (a) deprive the owner or lawful possessor of the
      motor vehicle of a right to the vehicle or a benefit from it, or
      (b) appropriate the motor vehicle to the accused’s own use or
      to the use of any person not entitled to it.

Jones v. State, 666 So. 2d 960, 964 (Fla. 3d DCA 1996). Here, the State
failed to prove the defendant: (1) knew the gray truck was stolen, and (2)
committed an act to assist the co-defendant in the theft of the gray truck.

   The only evidence presented by the State on the grand theft of a motor
vehicle charge came from the deputy who first discovered the boat theft.
He testified that he first pulled behind the maroon truck driven by the
defendant. When he tried to pass the maroon truck to get the license plate
number on the gray truck, the defendant positioned his truck to prevent
the deputy from passing him. The State argued that this conduct showed
the defendant knew the gray truck had been stolen. That coupled with the

                                     4
punched ignition in the gray truck was sufficient evidence to warrant the
denial of a motion for judgment of acquittal. We disagree.

   The deputy’s testimony at best raised only a scintilla of suspicion of the
defendant’s guilty knowledge, insufficient to withstand a motion for
judgment of acquittal, had one been made. See, e.g., A.D. v. State, 106 So.
3d 67, 69 (Fla. 2d DCA 2013) (reversing grand theft auto conviction where
state failed to present evidence that juvenile knew his friend intended on
stealing the van and only entered the stolen van after it was stolen);
Canady v. State, 813 So. 2d 161, 161 (Fla. 2d DCA 2002) (reversing
conviction because defendant was merely a passenger in a vehicle that he
knew was stolen).

   In short, the State failed to present evidence that the defendant knew
that the gray truck was stolen or that he assisted the co-defendant in
stealing the truck. As a matter of law, the evidence did not support a
conviction for grand theft of a motor vehicle, even under the principal
theory. See Hall, 100 So. 3d at 289. The State’s evidence was plainly
insufficient and thus it was fundamental error for the defendant to be
convicted of grand theft of a motor vehicle. Andre, 13 So. 3d at 105 (“[A]
conviction imposed upon a crime totally unsupported by evidence
constitutes fundamental error.”). 2

   The defendant makes six arguments as to why his thirty-year sentence
on the first degree grand theft charge should be reversed. He argues the
sentence is arbitrary and violates his due process rights, violates the Cruel
and Unusual Punishment Clause, and is disproportionate to that of his
co-defendant’s sentence in violation of the Equal Protection Clause. He
also argues that the trial court’s finding that the crime was committed with
great sophistication is unsupported by the evidence; and the court failed
to consider the cost to the public in imposing the maximum sentence,
which should be reserved for the most serious offenses committed by
persons with significant prior records. Because the sentence falls within
statutory limits, we must affirm. Howard v. State, 820 So. 2d 337, 339
(Fla. 4th DCA 2002) (citing Booker v. State, 514 So. 2d 1079, 1081 (Fla.
1987)).

   Judge Gross addresses these arguments in greater detail in his special
concurrence. I concur in many of his observations. I strongly support the
discretion given to judges in imposing sentences because there are so

2 Because the defendant’s conviction as a principal for grand theft of a motor
vehicle must be reversed for insufficiency of the evidence, the defendant’s claim
for ineffective assistance of counsel need not be addressed.

                                       5
many variables in every case. Yet, we do see sentences that beg for
justification that the record does not provide.

   We reverse the conviction on the grand theft of a motor vehicle charge
and remand the case to the trial court to vacate the conviction and its
corresponding five-year prison sentence. Because of the significance of
the issue raised by the special concurrence, we certify the following
question to the Supreme Court of Florida as being of great public
importance:

       Does a sentence within the statutory maximum under the
       Criminal Punishment Code violate either the Due Process
       Clause or Eighth Amendment when it is significantly greater
       than the lowest permissible sentence on the defendant’s
       scoresheet or the offered plea and grossly disproportionate to
       the median sentence imposed for similar crimes within the
       jurisdiction? 3

    Affirmed in part; Reversed in part and Remanded.

GROSS, J., concurs specially with opinion.
CONNER, J., concurs in part and dissents in part with opinion.

GROSS, J., concurring specially.

   I concur in the majority’s decision because current Florida law gives a
sentencing judge unlimited discretion to sentence a defendant up to the
maximum term set by the legislature for a particular crime. Also, the last
time the Florida Supreme Court considered a cruel or unusual
punishment challenge to a sentence, the court rejected it. See Hall v.
State, 823 So. 2d 757, 76061 (Fla. 2002) (finding that the Florida Criminal
Punishment Code did not violate federal or state constitutional guarantees

3 The Florida Constitution requires conformity with the federal interpretation of
the Eighth Amendment. Article I, Section 17 of the Florida Constitution requires
that,

       [t]he prohibition against cruel or unusual punishment, and the
       prohibition against cruel and unusual punishment, shall be
       construed in conformity with decisions of the United States
       Supreme Court which interpret the prohibition against cruel and
       unusual punishment provided in the Eighth Amendment to the
       United States Constitution.

Art. I, § 17, Fla. Const.

                                       6
against cruel or unusual punishment). However, Hall was decided prior
to Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 132 S. Ct.
2455 (2012), and Adaway v. State, 902 So. 2d 746 (Fla. 2005). An evolving
concept of the type of punishment that is cruel or unusual compels the
conclusion that the sentence in this case violates the Florida and United
States Constitutions. Fairness, justice, and due process dictate that the
sentence be reversed and the case remanded for resentencing.

              Brief Historical Review of Sentencing in Florida

    Criminal sentencing in Florida has come full circle in 40 years. Prior
to the imposition of sentencing guidelines, other than the maximum term
of years provided by statute and the occasional mandatory minimum,
there were few restrictions on a judge’s sentencing decision. One of the
purposes of the 1983 adoption of the sentencing guidelines was “‘to
establish a uniform set of standards to guide the sentencing judge’ and ‘to
eliminate unwarranted variation in the sentencing process by reducing the
subjectivity in interpreting specific offense and offender-related criteria
and in defining their relative importance in the sentencing decision.’”
Santiago v. State, 478 So. 2d 47, 48 (Fla. 1985) (quoting In re Rules of Crim.
Proc. (Sent’g Guidelines), 439 So. 2d 848, 849 (Fla. 1983)); accord Alan C.
Sundberg et al., A Proposal for Sentence Reform in Florida, 8 FLA. ST. U. L.
REV. 1 (1980) [hereinafter Sundberg]. The principles embodied by the
sentencing guidelines were:

      1. Sentencing should be neutral with respect to race, gender,
      and social and economic status.
      2. The primary purpose of sentencing is to punish the
      offender. Rehabilitation and other traditional considerations
      continue to be desired goals of the criminal justice system but
      must assume a subordinate role.
      3. The penalty imposed should be commensurate with the
      severity of the convicted offense and the circumstances
      surrounding the offense.
      4. The severity of the sanction should increase with the length
      and nature of the offender's criminal history.
      5. The sentence imposed by the sentencing judge should
      reflect the length of time to be served, shortened only by the
      application of gain time.
      6. While the sentencing guidelines are designed to aid the
      judge in the sentencing decision and are not intended to
      usurp judicial discretion, departures from the presumptive
      sentences established in the guidelines shall be articulated in
      writing and made only for clear and convincing reasons.

                                      7
      7. Because the capacities of state and local correctional
      facilities are finite, use of incarcerative sanctions should be
      limited to those persons convicted of more serious offenses or
      those who have longer criminal histories. To ensure such
      usage of finite resources, sanctions used in sentencing
      convicted felons should be the least restrictive necessary to
      achieve the purposes of the sentence.

In re Rule of Crim. Proc. (Sent’g Guidelines), 439 So. 2d at 849. The effect
of the guidelines was to enhance sentencing neutrality and reduce
subjectivity in sentencing.

    The Sentencing Guidelines emerged at a time when there was a national
concern about unreasonable sentencing variation. The “majority of the
criticism regarding sentencing practices . . . focused upon judicial
discretion.” Sundberg at 4. In 1978, the Florida Supreme Court
established a Sentencing Study Committee. Id. at 1 n.2. The Committee’s
“fundamental goal” was to “devise a system in which individuals of similar
backgrounds would receive roughly equivalent sentences when they
commit similar crimes, regardless of the differing penal philosophies of
legislators, correctional authorities, parole authorities, or judges.” Id. at
3.

   Significantly, to ensure that judicial discretion did not trump the fair
sentencing approach of the guidelines, trial judges were required to
delineate their reasons for departures from the guidelines, both orally and
in writing. Fla. R. Crim. P. 3702 (d)(18) (1994). This court reviewed such
departures under an abuse of discretion standard. See, e.g., Etienne v.
State, 780 So. 2d 1038, 1039 (Fla. 4th DCA 2001).

   While the sentencing guidelines were well-intentioned, the criminal law
became mired in the minutiae of scoresheets and whether a sentencing
judge had articulated “clear and convincing reasons” for exceeding a
presumptive guidelines sentence. Also, scoresheet issues proliferated in
motions for postconviction relief.

   In 1998, the legislature replaced the sentencing guidelines with the
Criminal Punishment Code, applicable to all noncapital felonies committed
on or after October 1, 1998. In re Adoption of Fla. Rules of Crim. Proc. 3.704
and 3.992 to Implement the Fla. Crim. Punishment Code, 721 So. 2d 265
(Fla. 1998); Ch. 98-204, Laws of Fla.; §§ 921.002-.0027, Fla. Stat. (2014).
The legislature determined that it was “in the best interest of the state to
develop, implement, and revise a sentencing policy.” § 921.002(1), Fla.
Stat. (1998). The Code “embodies” these “principles”:

                                      8
      a) Sentencing is neutral with respect to race, gender, and
      social and economic status.
      (b) The primary purpose of sentencing is to punish the
      offender. Rehabilitation is a desired goal of the criminal justice
      system but is subordinate to the goal of punishment.
      (c) The penalty imposed is commensurate with the severity of
      the primary offense and the circumstances surrounding the
      primary offense.
      (d) The severity of the sentence increases with the length and
      nature of the offender's prior record.
      (e) The sentence imposed by the sentencing judge reflects the
      length of actual time to be served, shortened only by the
      application of incentive and meritorious gain-time as provided
      by law, and may not be shortened if the defendant would
      consequently serve less than 85 percent of his or her term of
      imprisonment as provided in s. 944.275(4)(b) 3.               The
      provisions of chapter 947, relating to parole, shall not apply
      to persons sentenced under the Criminal Punishment Code.
      (f) Departures below the lowest permissible sentence
      established by the code must be articulated in writing by the
      trial court judge and made only when circumstances or
      factors reasonably justify the mitigation of the sentence. The
      level of proof necessary to establish facts that support a
      departure from the lowest permissible sentence is a
      preponderance of the evidence.
      (g) The trial court judge may impose a sentence up to and
      including the statutory maximum for any offense, including
      an offense that is before the court due to a violation of
      probation or community control.
      (h) A sentence may be appealed on the basis that it departs
      from the Criminal Punishment Code only if the sentence is
      below the lowest permissible sentence or as enumerated in s.
      924.06(1).
      (i) Use of incarcerative sanctions is prioritized toward
      offenders convicted of serious offenses and certain offenders
      who have long prior records, in order to maximize the finite
      capacities of state and local correctional facilities.

§ 921.002(1), Fla. Stat. (2014).

   The cost-benefit considerations contained in subsection 921.002(1)(i)
later came into play during the 2008-09 fiscal crisis, when the legislature
enacted section 775.082(10) “as a part of a cost-savings measure for the

                                      9
Department of Corrections, and the legislative staff analysis characterized
the statute as a ‘prison diversion approach.’” Jones v. State, 71 So. 3d
173, 175 n.4 (Fla. 1st DCA 2011) (quoting FLA. COMM. ON WAYS & MEANS,
BILL ANALYSIS & FISCAL IMPACT STATEMENT FOR CS/SB 1722, at 1 (2009)).
Section 775.082(10) requires courts to “sentence certain non-violent low-
scoring offenders to a non-state prison sanction unless the court finds that
such a sentence could endanger the public.” Id.

   Under the Code, section 921.0024 provides for the preparation of a
scoresheet for each defendant, which takes into account the severity of the
defendant’s primary offense at conviction, additional offenses at
conviction, and prior criminal history. These factors are scored and the
resulting total establishes a defendant’s “lowest permissible sentence”
which “is assumed to be the lowest appropriate sentence for the offender
being sentenced.” § 921.00265(1), Fla. Stat. (2014). While the trial judge
may impose any sentence up to and including the statutory maximum for
an offense, the court may not impose a sentence below the lowest
permissible sentence unless there is a valid mitigating circumstance to
justify such a downward departure. § 921.0026(1), Fla. Stat. (2014).

   Section 921.0026(2) sets forth a nonexclusive list of mitigating
circumstances that might justify a valid downward departure. The
reasons for a valid downward departure are subject to appellate review, “in
stark contrast to upward departures for which reasons need not be given
at all” under the Criminal Punishment Code. State v. Faulk, 840 So. 2d
319, 322 (Fla. 5th DCA 2003) (Sharp, J., concurring).

    By reestablishing judicial discretion up to statutory maximums, the
Code makes a return to pre-1983 law. The Code embraces the same
modified indeterminate sentencing structure that predated the Sentencing
Guidelines―the “legislature establishes a maximum sentence for each
category of criminal offense but provides the judiciary with the discretion
to sentence an offender either to a specific period of incarceration or to a
minimum-maximum range within the legislatively established limits.”
Sundberg at 6. It is as if the Guidelines’ concerns about sentencing
fairness, subjectivity, neutrality, and equality had petered out by 1998.
The granting of unfettered upward discretion under the Code has opened
Florida’s door to the excessive sentence imposed in this case.

   The problem with such unlimited sentencing discretion is that after a
defendant is convicted in a jury trial, too many judges impose the
maximum sentence allowed under the Code, under the rationale that they
are sending a message to criminals. This approach frustrates the
legislative intent expressed in the Code because it ignores the sentencing

                                    10
factors contained in section 921.002(1). Also, there is no research which
supports the view that a harsh sentencing “message” has its desired effect;
it is not as if there is a rational market theory of criminality where would-
be criminals make an empirical study of sentencing practices before
deciding on the geographical location of their crimes.            Relying on
behavioral research, Judge Richard Posner of the Seventh Circuit has cast
doubt on the actual deterrent effect of long sentences. See United States
v. Presley, 790 F.3d 699 (7th Cir. 2015).

  Appellate Courts May Address Constitutional Violations in Sentencing

   Under the current view of the Criminal Punishment Code, “the general
rule in Florida is that when a sentence is within statutory limits, it is not
subject to review by an appellate court.” Howard v. State, 820 So. 2d 337,
339 (Fla. 4th DCA 2002). “[A]n exception to the general rule against
interfering with the length of a sentence” is “where the facts establish a
violation of a specific constitutional right during sentencing.” Id. at 339-
40; accord Evans v. State, 816 So. 2d 742, 744 (Fla. 4th DCA 2002).
Examples of such violations are: (1) when a sentencing court relies upon
conduct for which a defendant has been acquitted, Doty v. State, 884 So.
2d 547, 549 (Fla. 4th DCA 2004), Cook v. State, 647 So. 2d 1066, 1067
(Fla. 3d DCA 1994), (2) where a judge imposes a sentence based on the
race, religion, political affiliation, or national origin of the defendant,
Santisteban v. State, 72 So. 3d 187, 197 (Fla. 4th DCA 2011), Nawaz v.
State, 28 So. 3d 122, 124-25 (Fla. 1st DCA 2010), Torres v. State, 124 So.
3d 439, 442 (Fla. 1st DCA 2013), (3) where a judge takes his own religious
beliefs into account in sentencing, Santisteban, 72 So. 3d at 197, (4) where
a judge improperly considers a defendant’s lack of remorse or failure to
accept responsibility, Davis v. State, 149 So. 3d 1158, 1160 (Fla. 4th DCA
2014), Moorer v. State, 926 So. 2d 475, 477 (Fla. 1st DCA 2006), or (5)
where a sentence is the product of judicial vindictiveness, Hall v. State,
823 So. 2d 757, 762 (Fla. 2002). One aspect of judicial vindictiveness is
where, after a jury trial, a sentencing judge punishes a defendant’s refusal
to accept a plea offer. See Mitchell v. State, 521 So. 2d 185, 187 (Fla. 4th
DCA 1988).

    The prohibition against cruel or unusual punishment is another type
of constitutional violation that can infect sentencing. In Miller v. Alabama,
the United States Supreme Court demonstrated a willingness to consider
challenges to the proportionality of particular sentences outside the
context of capital punishment. 132 S. Ct. 2455 (2012). As the Court
wrote,



                                     11
      The Eighth Amendment’s prohibition of cruel and unusual
      punishment guarantees individuals the right not to be
      subjected to excessive sanctions.       That right, we have
      explained, flows from the basic precept of justice that
      punishment for crime should be graduated and proportioned
      to both the offender and the offense. As we noted the last time
      we considered life-without-parole sentences imposed on
      juveniles, the concept of proportionality is central to the
      Eighth Amendment. And we view that concept less through a
      historical prism than according to the evolving standards of
      decency that mark the progress of a maturing society.

Id. at 2463 (internal citations omitted).

   More significantly, in Adaway v. State, the Florida Supreme Court
interpreted United States Supreme Court decisions to allow a challenge to
a sentence based on its length alone:

      We read the decisions in Solem [v. Helm, 463 U.S. 277 (1983)],
      Harmelin [v. Michigan, 501 U.S. 957 (1991)], and Ewing [v.
      California, 538 U.S. 11 (2003)] as requiring, for a prison
      sentence to constitute cruel and unusual punishment solely
      because of its length, that at a minimum the sentence be
      grossly disproportionate to the crime. The Court itself has
      announced that it is “clearly established” that “[a] gross
      disproportionality principle is applicable to sentences for
      terms of years.” Lockyer [v. Andrade, 538 U.S. 63, 72 (2003)].

902 So. 2d at 750.

   The record in this case establishes that the sentence here was the type
of “grossly disproportionate” sentence contemplated in Adaway. At the
time of sentencing, appellant was 55 years old with no prior criminal
record. He was not convicted of a crime of violence or intrusion into a
dwelling. There was no physically injured victim. There was no weapon.
He rejected a plea offer of 3 years. His recommended lowest sentence
under the Code was 23.7 months in prison. After he was convicted at trial,
the state argued for a 25-year sentence. The maximum sentence for the
two charges was 35 years. The court sentenced him to consecutive
sentences totaling 35 years. By comparison, appellant’s co-defendant, a
twice convicted felon whose lowest permissible sentence was 47.1 months
and maximum was 60 years, received a 15-year sentence. Given
appellant’s age, the sentence was tantamount to a life sentence that
violates the prohibition against cruel or unusual punishment. See, e.g.,

                                     12
Adams v. State, 37 Fla. L. Weekly D1865 (Fla. 1st DCA 2012) (holding that
sentence which required juvenile defendant to serve at least 58.5 years in
prison was a de facto life sentence for non-homicide offense).

   Appellant has marshalled convincing evidence that his sentence was
grossly disproportionate to other similarly situated defendants in the 19th
Judicial Circuit. During the fiscal year 2011-12, 84 defendants were
sentenced to prison in the 19th Judicial Circuit who scored between 23.7
to 28 months under the Criminal Punishment Code. The mean prison
sentence for these defendants was 51.11 months and the median prison
sentence was 36 months. The sentence imposed most frequently was 36
months.

    Appellant’s 420 month sentence greatly exceeded any of these
numbers. 4 As appellant argues, “sentences for defendants with the same
CPC score should be more uniform than sentences lumped together by
offense.” This makes sense because a CPC score takes into account the
characteristics of the offender, most notably his prior record, and
characteristics of the offense committed, such as its severity, victim injury,
and firearm possession, as well as additional offenses at conviction.

   When compared to defendants sentenced to nonstate prison sanctions
and those whose CPC score was higher, the unusual punishment meted
out to appellant becomes even clearer. Over the fiscal year 2011-12, 117
defendants in the 19th Judicial Circuit scored higher than appellant (23.8
or higher) and were sentenced to nonstate prison sanctions. Also, 433
defendants scored higher than appellant under the CPC, demonstrating a
higher degree of blameworthiness—yet none received a sentence greater
than appellant’s 420 month sentence. As appellant argues, “no defendant
who was sentenced to prison in the 19th Judicial Circuit in fiscal year
2011-2012 could point to appellant and say that appellant was treated
more favorably than himself.”

   Disproportionately long sentences mask other constitutional violations
in sentencing. First, in some courtrooms, sentencing is not “neutral with
respect to race, gender, and social and economic status.” § 921.002(1)(a),




4 The sentence here also greatly exceeded that of similarly situated defendants in

the other circuits within this district. For such defendants, the 15th Judicial
Circuit had a mean prison sentence of 34.51 months, and a median sentence of
27.15 months. The 17th Judicial Circuit had a mean sentence of 29.36 months
and a median of 26 months.

                                       13
Fla. Stat. (2014). 5 Second, in some courtrooms, some defendants receive
a harsher sentence after they exercise their right to a jury trial. See THE
SENTENCING PROJECT (“It is widely acknowledged that defendants who go to
trial and are found guilty instead of initially pleading guilty tend to receive
harsher sentences; this is known as the ‘trial penalty.’”). Of course, this
practice “chill[s] the exercise of [the] Fifth Amendment privilege against
self-incrimination” and the “Sixth Amendment right to have . . . guilt or
innocence determined by a jury.” McDonald v. State, 751 So. 2d 56, 58
(Fla. 2d DCA 1999).

   Reversals, however, occur only when the record reveals an improper
sentencing motive. See Gallucci v. State, 371 So. 2d 148 (Fla. 4th DCA
1979); Stephney v. State, 564 So. 2d 1246 (Fla. 3d DCA 1990). The silent
imposition of a trial penalty evades appellate review. Similarly, sentences
imposed without sufficient explanation can mask implicit biases, which
are “activated involuntarily” and which “generally occur without our
awareness or intentional control.” Hon. Dana Lee Marks, “Who, Me? Am I
Guilty of Implicit Bias?” 54 ABA Judges’ Journal No. 4, 20, 22 (Fall 2015).
Finally, the political reality is that judicial elections are not lost because of
harsh sentencing. Indeed, a recent study concluded that the “pressures
of upcoming reelection campaigns affect judicial decision-making in
criminal cases, making judges more likely to impose longer sentences.”
KATE BERRY, BRENNAN CTR. FOR JUSTICE, HOW JUDICIAL ELECTIONS IMPACT
CRIMINAL CASES 1 (2015).

   Judicial silence presents an insurmountable obstacle to establishing a
record of a constitutional violation in sentencing. Such difficulty is evident
in cases like Mitchell v. State, where the court painstakingly examined the
record and found nothing that supported an inference of vindictiveness.
521 So. 2d at 190. The trial judge “made no remarks which would give
any indication that the harsher sentence was being imposed as a punitive
measure for rejecting the previous [plea] offer.” Id. It is the rare judge
whose own words form the basis of a reversal of a sentence. For this
reason, focusing on an objectively disproportionate sentence as cruel or

5 Statistical analysis demonstrates that in the United States there is significant
racial disparity in sentencing decisions and these disparities rise with the severity
of the given sentence. ACLU, HEARING ON REPORTS OF RACISM IN THE JUSTICE
SYSTEM OF THE UNITED STATES (2014). Significantly, studies demonstrate greater
racial disparity in sentencing non-violent crimes. Id. at 3; see also TUSHAR
KANSAL, THE SENTENCING PROJECT, RACIAL DISPARITY IN SENTENCING: A REVIEW OF
THE LITERATURE (Marc Mauer ed., 2005) [hereinafter THE SENTENCING PROJECT]
(noting Black and Latino defendants are often sentenced more severely than
similarly situated White defendants for “less serious crimes,” such as drug and
property crimes).

                                         14
unusual punishment is the preferable way to prevent constitutional
sentencing violations. 6

   Here the trial judge’s stated reasons for the 35-year sentence do not
justify the length of the sentence. The trial judge said that the crime—the
stealing of boat motors—was committed with “great sophistication”;
however, unlike a complex economic crime, the mechanics of this episode
are hardly sophisticated. Planning a crime and wearing gloves to avoid
detection is not synonymous with sophistication. At oral argument, the
state relied on the defendant’s Miami point of origin as a mark of
sophistication. In the age of GPS technology, navigating to Martin County
from Miami on I-95 is hardly the hallmark of a sophisticated criminal
mind.

    The maximum sentence imposed in this case runs afoul of the
principles that the “penalty imposed [be] commensurate with the severity
of the primary offense” and the “severity of the sentence increases with the
length and nature of the offender’s prior record.” § 921.002(1)(c)-(d). The
most compelling argument against this sentence is that a 35-year sentence
for a 55-year-old offender with no prior criminal record is in essence a de
facto life sentence.

   It also fails to “maximize the finite capacities of state and local
correctional facilities.” § 921.002(1)(i). In 1995, a legislatively created task
force identified as a core principle that the “state must preserve scarce
criminal justice resources through the efficient delivery of services, the
development of a cost effective range of sanctions, and the utilization of
limited prison beds for the worst offenders.” TASK FORCE FOR REVIEW OF
CRIMINAL JUST. AND CORRECTIONS SYS., FINAL REPORT 1 (Jan. 1995).

    Recognition of the practical “downside of long sentences is recent and
is just beginning to dawn on the correctional authorities and criminal
lawyers.” United States v. Presley, 790 F.3d 699, 702 (7th Cir. 2015). 7 In
Presley, the Seventh Circuit remanded a case to enable the trial judge “to
consider whether to resentence the defendant” in light of the sentencing
policies expressed in the opinion. Id. at 704. There, a 34-year-old with a

6 Various constitutional rights can be implicated in a sentencing. See Art. I, § 2,
Fla. Const. (“No person shall be deprived of any right because of race, religion,
national origin, or physical disability.”); Art. I, § 9, Fla. Const. (right to due
process); Art. I, § 16(a) (right to “a speedy and public trial by impartial jury”); Art.
I, § 22 (right to a trial by jury).
7See, e.g., Joe Palazzolo, Prison Population Cuts Catch On, WALL ST. J., Jan. 2-3,

2016, at A3.

                                          15
lengthy criminal history was convicted of heroin and gun offenses and
sentenced to almost 37 years in prison. Id. at 700-01. Writing for the
majority, Judge Posner identified three sentencing policies that call into
question the propriety of such a lengthy sentence.

   First, the court questioned the deterrent effect of the long sentence.
“Criminals, especially ones engaged in dangerous activities such as heroin
dealing, tend to have what economists call a ‘high discount rate’—that is,
they weight future consequences less heavily than a normal, sensible, law-
abiding person would.” Id. at 701. “[T]he prospect of being in prison at
age 60 is less worrisome to a 30 year old than the prospect of being in
prison today—and the higher his discount rate, the less worrisome the
prospect.” Id. A long sentence may add “little additional deterrence, since
every sentence increment is an increment in future, not present,
punishment.” Id. at 701-02.

   Second, the sentencing court in Presley failed to consider whether
sentencing the defendant into his sixties was necessary to prevent his
return to criminal activities at that age.

      Sentencing judges need to consider the phenomenon of aging
      out of risky occupations. Violent crime . . . is generally a
      young man’s game. Elderly people tend to be cautious, often
      indeed timid, and averse to physical danger. Violent crime is
      far less common among persons over 40, let alone over 60,
      than among younger persons.

Id. at 702.

    Third, Judge Posner wrote that in evaluating a sentence there needs “to
be considered the cost of imprisonment to the government, which is not
trivial.”   Id.  “If the deterrent or incapacitative effect on criminal
propensities fades sharply with time, the expenses incurred in the
incarceration of elderly persons may be a social waste.” Id. Prisoners over
50 cost prison systems more than younger prisoners, mainly due to
increased medical costs. Id. The recidivism rate of released inmates over
50 is less than 19 percent. Id. In considering the optimal sentence for an
elderly prisoner, Judge Posner concluded:

      [P]robably the judge’s primary focus should be on the
      traditional triad of sentencing considerations: incapacitation,
      which prevents the defendant from committing crimes (at
      least crimes against persons other than prison personnel and
      other prisoners) until he is released, general deterrence (the

                                    16
      effect of the sentence in deterring other persons from
      committing crimes), and specific deterrence (its effect in
      deterring the defendant from committing crimes after he’s
      released). A sentence long enough to keep the defendant in
      prison until he enters the age range at which the type of
      criminal activity in which he has engaged is rare should
      achieve the aims of incapacitation and specific deterrence,
      while lengthening the sentence is unlikely to increase general
      deterrence significantly if the persons engaged in the criminal
      activity for which the defendant is being sentenced have a high
      discount rate; for beyond a point reached by a not very long
      sentence, such persons tend not to react to increases in
      sentence length by abandoning their criminal careers.

Id. at 703.

  Under an evolving sense of what is an unconstitutional cruel or
unusual sentence, the 35-year sentence in this case should not stand.

One view of the Due Process Clause is that it requires judges to state their
                         reasons for a sentence

   In the 1970s, many thoughtful commentators expressed concerns
about sentences imposed without explanation. Judge Marvin Frankel
wrote a book that influenced sentencing reform in Florida and elsewhere—
CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973). In it, he contended that
a requirement that judges explain the reasons behind a sentence was a
cornerstone of fairness:

      The point . . . is that the parties (especially the loser) are, on
      deep principles, not merely entitled to a decision; they’re
      entitled to an explanation . . . . The duty to give an account
      of the decision is to promote thought by the decider, to compel
      him to cover the relevant points, to help him eschew
      irrelevancies—and finally to make him show that these
      necessities have been served. The requirement of reasons
      expressly stated is not a guarantee of fairness. The judge or
      other official may give good reasons while he acts upon
      outrageous ones. However, given decision-makers who are
      both tolerably honest and normally fallible, the requirement
      of stated reasons is a powerful safeguard against rash and
      arbitrary decisions.

      ***

                                     17
      Since, as I have said, judges usually say little or nothing to
      explain their sentences, the possibility that they were moved
      by absurd or vicious considerations is not usually open to
      inquiry. And the circle proceeds to be closed. The judges, if
      they are merely human rather than depraved, do not enjoy
      being caught in error. They know that an unexplained decision
      does not flaunt its possible fallacies. When they are not
      required to explain, many at least find this conclusive grounds
      for not explaining. There is no way of knowing, then, how many
      sentences, for how many thousands of years, have rested upon
      hidden premises that could not have survived scrutiny.

Id. at 40-42 (emphasis added).

  One legal scholar has argued that the due process clause requires judges
to explain their sentencing decisions.        Michael C. Berkowitz, The
Constitutional Requirement for a Written Statement of Reasons and Facts in
Support of the Sentencing Decision: A Due Process Proposal, 60 IOWA L. REV.
205 (1974); see also Michael M. O’Hear, Appellate Review of Sentences:
Reconsidering Deference, 51 WM. & MARY L. REV. 2123, 2125 (2010).
Whether the hour for Professor Berkowitz’s modest proposal has come
round at last will have to be decided by a Court higher than this one.

  Adaway opened a constitutional door that appeared to have been closed
in Hall. For the above reasons, I agree with the certified question
contained in the majority opinion.

CONNER, J., concurring in part and dissenting in part.

   I concur with the majority opinion, except for the reversal on the charge
of grand theft of a motor vehicle and the certification of the proposed
question of great public importance. I dissent as to both.

   I disagree that there was insufficient evidence that the defendant knew
the gray truck was stolen or that he had any involvement in its theft. There
are additional facts in the record that are not discussed in the majority
opinion. The surveillance videos at the business property from where the
boats were stolen establish the perpetrators wore masks in the process of
removing the boats from the business premises to another location nearby
to detach the motors. The other perpetrators involved in the heist were
men much younger than the defendant.



                                    18
   In closing argument, the defendant argued that the evidence failed to
negate the hypothesis that he did not know what the others were doing
and that he was innocently assisting acquaintances, while sitting in, and
never getting out of, his truck at a location other than the business
property from which the boats were removed. Additionally, he pointed out
that he is an older man, and stealing several three-hundred-pound boat
motors is a “young man’s game.”

   As the State argued in closing argument, the evidence supported the
conclusion that the defendant was part of a well-orchestrated plan to steal
boats and boat engines that included stealing a truck and using the stolen
truck to move the boats and engines off premises to another location
nearby. Use of the stolen truck was necessary so that the perpetrators’
vehicles would not be caught on the multiple surveillance cameras at the
business premises.      Obviously, the perpetrators wanted to avoid
identification and apprehension by wearing masks in the process of
removing the boats and making sure that none of their vehicles were
captured on camera until the cameras could be covered. The use of a
stolen truck was necessary to avoid identification in the process of entering
the business property, as well as to anticipate the possibility that the
perpetrators might miss covering one of the cameras with gloves while the
heist was ongoing. Additionally, as the prosecutor argued, the defendant’s
actions in blocking the deputy from coming around his vehicle while
travelling closely behind the codefendant in the gray truck supports an
inference that the defendant did not want the deputy to see the tag on the
gray truck nor get a good look at the gray truck in order to radio
information to dispatch or fellow officers because the defendant knew the
vehicle was stolen. 8 The combination of evidence refuted the defense’s
assertion that the defendant was an innocent participant in the heist.

   The defendant’s driving in a manner to block the deputy from getting
behind, along, or in front of the gray truck also supports an inference that
the defendant was assisting his codefendants in stealing the gray truck. “In
the context of an automobile theft, [intent] would be shown, if not by aid
or participation in the taking of the vehicle, then by some exercise of
dominion and control over [the vehicle] afterwards.” G.C. v. State, 560 So.
2d 1186, 1187 (Fla. 3d DCA 1990). The act of keeping the deputy away

8  Although the majority opinion discusses that the deputy shined his “takedown”
floodlights on the defendant’s truck, an additional fact not mentioned in the
majority opinion is that the defendant was being pursued by the deputy at
approximately 2:00 a.m. Darkness makes identification more difficult the more
distance there is between vehicles. Thus, keeping the officer away from the stolen
truck assisted the defendant in avoiding detection of that crime.


                                       19
from the gray vehicle was evidence of the defendant’s exercise of dominion
and control over the gray truck.

   “‘In cases in which the evidence of guilt is wholly circumstantial, it is
the trial judge's task to review the evidence in the light most favorable to
the State to determine the presence of competent evidence from which the
jury could infer guilt to the exclusion of all other inferences.’” Ballard v.
State, 923 So. 2d 475, 482 (Fla. 2006) (quoting Crain v. State, 894 So. 2d
59, 71 (Fla. 2004)). Therefore, “[t]he state is not required to rebut
conclusively every possible variation of events which could be inferred from
the evidence, but only to introduce competent evidence which is
inconsistent with the Defendant's theory of events.” Kocaker v. State, 119
So. 3d 1214, 1225 (Fla. 2013) (quoting Durousseau v. State, 55 So. 3d 543,
556-57 (Fla. 2010)). The fact that a box of the same type of latex gloves
used to cover the surveillance cameras was found in the truck the
defendant was driving, coupled with (1) the manner of the defendant’s
driving to thwart the deputy following him, (2) additional facts evincing an
intent to use a stolen truck in the process of removing the boats from the
business property, and (3) other efforts to minimize the risk of detection
and identification, rebuts any reasonable hypothesis of innocence (lack of
knowledge of what the others were doing and that the truck was stolen
and involvement in taking the vehicle).

   In my view, A.D. v. State, 106 So. 3d 67 (Fla. 2d DCA 2013), relied upon
by the majority, actually supports affirmance of the defendant’s grand
theft of motor vehicle conviction.        Although A.D.’s adjudication of
delinquency as to theft of a minivan was reversed, the adjudication as to
theft of an ATV (all-terrain vehicle) was upheld because the State provided
proof that A.D. “demonstrated a deliberate pattern of conduct” so that his
actions went beyond mere presence at the scene. Id. at 71. 9

   For the above reasons, I would affirm the conviction for grand theft of
a motor vehicle.

   For three reasons, I also dissent from certifying the question posed by
the majority as being of great public importance: (1) the question and
reasoning expressed as support for the question may be viewed by some

9  Canady v. State, 813 So. 2d 161, 161 (Fla. 2d DCA 2002), also relied upon by
the majority, is factually dissimilar to this case and its brief discussion of legal
principles offers little assistance in deciding this case. In Canady, the appellant
was a passenger in a car that had been stolen. The one-page opinion does not
discuss the facts in detail, but it appears there was no evidence, unlike this case,
to directly or circumstantially show that the appellant was assisting in taking the
vehicle.

                                        20
as an attempt by the judiciary to expand its power of review in a way that
ignores the separation of powers doctrine; (2) the reasoning in support of
the question is premised upon an incorrect assumption that it is not
appropriate to impose a maximum sentence (35 years) on a person 55
years of age with no prior record, after proceeding to trial in a case in which
the State offered a plea bargain with a much lower prison sanction; and,
(3) perhaps most disturbingly, the reasoning expressed as support for the
question suggesting that constitutional principles should be expanded to
correct arguably harsh sentences may be perceived as the majority
suggesting, inferentially, that a systemic problem exists within the trial
bench.

    The question of great public importance posed by the majority asks our
supreme court to entertain this case to analyze whether the Due Process
Clause or Eighth Amendment was violated by the sentences imposed in
this case. The arguments and assertions appear to be inspired by a
concern that two maximum, consecutive sentences, “in essence a de facto
life sentence,” imposed on a 55-year-old defendant with no prior record for
two felony theft offenses were unduly harsh. The direct assertion is that
the sentences are grossly disproportionate and violate several of the
principles embodied by section 921.002(1), Florida Statutes (2015), the
Criminal Punishment Code. The indirect assertion is that the imposition
of consecutive maximum sentences is arbitrary and capricious or the
result of silent, improper, and unconstitutional sentencing considerations.

    Although the specially concurring opinion, in discussing grossly
disproportionate sentencing, suggests that there is an “evolving concept of
the type of punishment that is cruel or unusual,” the only recent evolution
of Eighth Amendment analysis announced by the United States Supreme
Court has been in the area of juvenile sentencing. See Graham v. Florida,
560 U.S. 48 (2010); Miller v. Alabama, 132 S.Ct. 2455 (2012). There has
been no evolution of concept for adult sentencing.                The last
pronouncements by the Supreme Court of Eighth Amendment analysis
discussing grossly disproportionate sentencing of adults are Ewing v.
California, 538 U.S. 11 (2003) and Lockyer v. Andrade, 538 U.S. 63 (2003).
Also, the last pronouncement on the subject by the Florida Supreme Court
is Adaway v. State, 902 So. 2d 746 (Fla. 2005).

    Adaway gives a good analysis of the “thicket of Eighth Amendment
jurisprudence” with regards to sentencing that is alleged to be grossly
disproportionate, noting that the Supreme Court itself has not reached a
majority consensus on the standard for determining the constitutionality
of long prison sentences. Id. at 748. The court also noted that “[t]he first
and only case in which the [United States] Supreme Court has invalidated

                                      21
a prison sentence because of its length was Solem v. Helm, 463 U.S. [277,
290 (1983)].” Id. at 749. Especially significant to this case, the court said:

      We read the decisions in Solem, Harmelin [v. Michigan, 501
      U.S. 957 (1991)], and Ewing [v. California, 538 U.S. 11 (2003)]
      as requiring, for a prison sentence to constitute cruel and
      unusual punishment solely because of its length, that at a
      minimum the sentence be grossly disproportionate to the crime.

Id. at 750 (emphasis added).

    What the specially concurring opinion overlooks, regarding the Eighth
Amendment, is that “‘proportionality analysis focuses on the crime charged
and the legislatively imposed punishment for the crime, not the specific facts
of a particular case.’” Peters v. State, 128 So. 3d 832, 850 (Fla. 4th DCA
2013) (emphasis added) (quoting Edwards v. State, 885 So. 2d 1039, 1039
(Fla. 4th DCA 2004)). Thus, the Eighth Amendment questions to be asked
in this case are: 10

      (1) Is it grossly disproportional to impose a thirty-year
          sentence for the crime of grand theft where the value of the
          property taken is $20,000 or more, but less than
          $100,000?

      (2) Is it grossly disproportional to impose a five-year sentence
          for the crime of theft of a motor vehicle?

    In answering the above questions, “[f]irst, a court must consider the
‘gravity of the offense and the harshness of the penalty.’” Wiley v. State,
125 So. 3d 235, 240 (Fla. 4th DCA 2013) (quoting Andrews v. State, 82
So. 3d 979, 984 (Fla. 1st DCA 2011)). It is hard to imagine that any judge
in Florida would answer “yes” to either of the above questions. Certainly,
such sentences are not “so excessive as to shock the judicial conscience.”
Cf. Booker v. State, 514 So. 2d 1079, 1085 (Fla. 1987) (explaining that it
would be an abuse of discretion to impose an upward departure sentence
under the 1987 sentencing guidelines if the sentence was “so excessive as
to shock the judicial conscience”).




10 Our supreme court, following United States Supreme Court precedent, has
determined that consecutive sentencing does not violate the Eighth Amendment.
Hall v. State, 823 So. 2d 757, 761-62 (Fla. 2002).


                                     22
   It also appears imprudent to certify a question of great public
importance in this case regarding the Eighth Amendment, because doing
so ignores the separation of powers doctrine. What our supreme court
stated in 1943 remains true today:

      As a general rule, in cases where the objection is to the
      particular sentence, and not to the statute under which it has
      been imposed, a sentence which is within the limit fixed by
      statute is not cruel and unusual and is therefore valid, no
      matter how harsh and severe it may appear to be in a
      particular case, because the constitutional prohibition has
      reference to the statute fixing the punishment, and not to the
      punishment assessed by the jury or court within the limits
      fixed by statute. If the statute is not in violation of the
      Constitution, then any punishment assessed by a court or
      jury within the limits fixed thereby cannot be adjudged
      excessive, for the reason that the power to declare what
      punishment may be assessed against those convicted of crime
      is not a judicial power, but a legislative power, controlled only
      by the provisions of the Constitution.

Brown v. State, 13 So. 2d 458, 461 (Fla. 1943); See also O’Donnell v. State,
326 So. 2d 4, 5 (Fla. 1975).

   The precision of the analysis in support of certifying a question of great
public importance with regards to the Due Process Clause is not apparent
to me. Seemingly, the argument is that the maximum sentences, perceived
by the majority as unduly harsh, are the result of improper sentencing
considerations, rather than adhering to the sentencing principles
announced by the legislature for the Criminal Punishment Code. Without
explicitly determining that there is no competent substantial evidence to
support the statements of the trial court at sentencing, the majority is
obviously skeptical that the trial court announced its true reason for
imposing the maximum sentences on an older defendant with no prior
record. 11


11 As argued by the state in this case, there are significant reasons why the
defendant received a much longer sentence, as compared to his younger
codefendant. The state offered a plea agreement to the codefendant, which was
accepted. There is an indication in the record that the defendant and
codefendant were both involved with a criminal enterprise stealing boats in more
than one area of the state. Although the trial court at sentencing explicitly stated
it was not factoring in other crimes with which the defendant may have been
involved at the time, as the state points out, nothing in this record shows what

                                        23
    In support of the certified question, the specially concurring opinion
devotes one section to due process, consisting of four paragraphs. That
section proposes a solution to our supreme court: follow the
recommendation of legal commentators who have suggested that trial
judges explain the reasons for the length of their sentences. What is
puzzling is that the trial court in this case did explain on the record why
it did not agree with the State’s sentencing recommendation. Perhaps the
majority is suggesting that trial judges should articulate reasons for the
length of a sentence imposed that acknowledges consideration of, in detail
or generally, the sentencing principles announced by the legislature for
the Criminal Punishment Code.

   An issue about which the specially concurring opinion seems
concerned is silent improper sentencing considerations. By certifying a
due process question to our supreme court, my assumption is the majority
feels that a requirement by which trial judges articulate their reasons for
imposing a sentence will allow appellate courts to discern whether silent
improper sentencing factors are at play. Traveling down such a path is
seriously problematic.

   Similar to the discussion regarding the Eighth Amendment, adopting a
due process requirement that trial judges articulate reasons for the
sentence imposed, showing compliance with statutory sentencing
principles, will effectively end-run section 924.06(1)(d) and (e), Florida
Statutes (2015). Those sections provide:

       (1) A defendant may appeal from:

       ....

       (d) A sentence, on the ground that it is illegal; or

       (e) A sentence imposed under s. 921.0024 of the Criminal
           Punishment Code which exceeds the statutory maximum
           penalty provided in s. 775.082 for an offense at conviction,
           or the consecutive statutory maximums for offenses at
           conviction, unless otherwise provided by law.

§ 924.06(1)(d)-(e), Fla. Stat. (2015).



plea offers were made to the codefendant. It is not unusual for the state to offer
significantly different plea offers to codefendants, in hopes one of them will “flip”
on the others.


                                         24
   Such an end-run ignores the separation of powers doctrine. The
practical outcome of such an expansion is to grant to all defendants and
the appellate courts an opportunity to review the length of sentences – an
opportunity which has never existed. I believe that expanded review of the
length of sentences will create a tremendous influx of direct appeals and
post-conviction appeals. Although appellate counsel have ethical and
professional responsibilities to abstain from presenting frivolous appellate
issues, I have no doubt that, in many cases, a defendant given a lengthy
sentence will contend that the sentence was prompted by a silent improper
sentencing consideration.

   More importantly, allowing such an expanded opportunity for appellate
review would be a mistake for practical reasons important to the individual
case. There is sound reason for the fundamental rule of appellate decision-
making that appellate courts defer to the facts, as determined by the trial
judge. Trial judges operate in an environment which gives them the ability
to evaluate reality, the accuracy of evidence and assertions, and the truth
in ways which are not amenable to the appellate environment. Quite
simply, trial judges are in a much superior vantage point to determine the
appropriate weight of the evidence presented to them.

    Additionally, imposing a due process requirement that judges
announce reasons for long or disproportionate sentences which comport
with statutorily approved sentencing considerations will do little to correct
a problem of judges using silent, improper sentencing considerations. Any
judge who is inclined to use silent, improper sentencing consideration for
punishment will be able to articulate a logical reason for the improper
sentence, which facially includes one of more statutorily approved
sentencing considerations, for which there is competent substantial
evidence in the record. Giving appellate courts the authority to review
claims of silent, improper sentencing considerations because a sentence
is lengthy or arguably disproportionate will authorize appeals by the many
to redress a harm that I contend is experienced by far fewer defendants
than the majority perceives. My fear is imposing an ineffective remedy will
create more harm (the drain on judicial resources to review of meritless
claims) than it cures.

   By certifying a question as one of great public importance, I completely
disagree with the implicit assertion, as well as some of the direct comments
in the specially concurring opinion, suggesting that there is a systemic
problem in the trial courts which needs correction by our supreme court.
Nonetheless, even if there is a systemic problem with arguably harsh
sentences, that problem is best explored, debated, and resolved by the
legislature, not the judiciary.

                                     25
                      *        *        *

Not final until disposition of timely filed motion for rehearing.




                               26
