       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        NICO VINCENZO GALLO,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D18-1236

                             [April 10, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No. 43-2016-CF-
000919A.

  Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Melynda L.
Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

                     ON MOTION FOR REHEARING

GROSS, J.

    We grant appellant’s motion for written opinion but deny his motion for
rehearing and to certify conflict or a question of public importance. We
affirm the conviction and sentence. We write to address several of
appellant’s arguments regarding the sentence imposed by the circuit
court.

                               The Crime

   The victims in this disturbing case were a woman and her son. The
woman was at home, sleeping in her bedroom, when she heard someone
trying to enter through the front door. She called her son as she went to
the living room. There, she saw a broken top window panel. She pulled
back the drapes and saw appellant.
    Appellant said, “I’m sorry, I’m sorry . . . I’m going to die today.”
Appellant then “cannonballed” through the bottom window panel into her
living room and began to fight with the son as he approached to protect
his mother. The son tried to hold appellant down, but he was overpowered.
The woman hit appellant on the head with a baseball bat several times.
The son continued to wrestle appellant, trying to restrain him. Appellant
wrapped his legs around the son’s neck. The woman called 911—she said
that she was bleeding and that her son was “opened up.” She said that
appellant was trying to take the bat from her. She said, “He’s just going
crazy, he’s attacking.”

   A deputy arrived at the house and saw “blood everywhere.” The
woman’s son was on top of appellant. The deputy secured appellant in
wrist restraints, but when asked for his name, appellant “swept [the
deputy’s] legs out from underneath him” and kicked the back of the
deputy’s leg. While another officer was retrieving leg restraints, appellant
grabbed the first deputy’s pants and “shredded ‘em.” After appellant was
secured with leg restraints, his mood alternated between periods of calm
and aggression. While calm, he told the officers his name and that he took
drugs. When he was aggressive, “he was trying to drink the blood that
was pooling from his own head on the floor” and “appeared [to be] having
a conversation with Satan.”

  At a sentencing hearing, the woman described the incident after
appellant broke into the living room:

      [Appellant] started screaming kill me, kill me, I’m going to die
      tonight. My son kept telling him just calm down, stop, I’m not
      going to hurt you, just hold still. I had bolted past to grab my
      phone and I grabbed a baseball bat that I kept next to my bed,
      I came out and I, my fear was running everywhere, my biggest
      fear was that I was going to accidentally hit my son instead
      and I didn’t wanna do that, I thought I might kill my son. I
      called 9-1-1, he would not hold still, my son kept wrestling
      with him and I started hitting him with the bat. I was in fear
      of my life, I was in fear of my son’s life. This, they, they had,
      there, there was like super human strength, the[y] just
      wrestled and rolled around, the furniture moved, it’s a tile
      floor, the[] furniture moved, they were on the sofa, the
      ottoman, the loveseat, the chair um, he would not stop. At
      one point he attempted to grab the baseball bat from me, I
      was able to keep that away from him and every time I could I,
      I took a swing. I was, like I said, I was fighting for our lives.


                                    -2-
   After appellant was restrained, the woman’s arm was bleeding from the
broken glass. She was taken to the hospital and received stitches. She
lost the window, rugs, blinds, and furniture. She had to have a hazmat
crew come in to clean up the blood.       She was “financially destroyed
because of the debt.”

   The day after the incident, appellant told a detective that “he ha[d]
taken an assortment of narcotics . . . cannabis, acid, Methylone,” and that
he “started hearing voices in his head, so he ran out of his house down the
street and . . . the voices told him that he needed to go inside [the victims’]
house.”

   Appellant was charged with burglary of a dwelling with an assault or
battery, a first degree felony “punishable by imprisonment for a term of
years not exceeding life imprisonment.” § 810.02(2)(a), Fla. Stat. (2017).
He was also charged with battery on a law enforcement officer, criminal
mischief ($1,000 or more) and resisting an officer with violence, all third
degree felonies carrying a maximum penalty of five years’ imprisonment.
See §§ 784.07(2)(b), 806.13(1)(b)3., 843.01, Fla. Stat. (2017).

                             The Plea Bargain

   On the life felony burglary charge, appellant pleaded no contest to the
lesser-included offense of trespass, which in most instances is a
misdemeanor. § 810.08, Fla. Stat. (2017). Appellant also pleaded no
contest to the remaining three charges. The plea was open, with the
proviso that the State would reduce the burglary charge to a trespass and
that appellant would pay $21,279.89 in restitution to the woman and her
son, various medical facilities, and Martin County Fire and Rescue.
Appellant scored thirty-three points on his CPC scoresheet. As the court
explained, this score made sentencing “a completely wide open situation.
Anywhere from time served . . . to the maximum, which now becomes 15
years in prison,” plus the misdemeanor.

                         The Sentencing Hearing

   During the sentencing portion of the hearing, two responding officers
testified about the chaos at the crime scene and appellant’s bizarre
behavior. A detective described his interaction with appellant on the day
after the incident. The State played the woman’s frantic 911 call. The son
described his struggle with appellant and how he “knew [he] was in a little
bit of trouble” when appellant wrapped his legs around the son’s neck.
Finally, the woman told her story of the crime, much of which is quoted
above.

                                     -3-
   On appellant’s behalf, his uncle said he was a “kind, loving, happy kid”
who was a hard worker and for whom this incident in his life was “just an
anomaly.” Appellant’s father also said that appellant was a “hard worker”
who understood that he “took this false step” and “made a mistake.” The
father said that appellant “want[s] to make this right. He does want to
make restitution and he does wanna move on with his life” and “use this
as a learning experience and hopefully help someone else down the road.”
Appellant expressed his remorse—“I wish I could turn back the clock so
many times . . . I think about this every single day of my life.” He promised
the court to “make right on this” no matter what it took.

   The State recommended ten years in prison as a sentence, or in the
alternative, five years in prison, followed by ten years of probation with no
chance of early termination. Appellant’s counsel advocated for twenty-
four months in prison, followed by any probation sentence the court found
appropriate.

   In a considered sentencing pronouncement, the trial judge spoke at
length about what was on his mind regarding an appropriate sentence.
The judge expressed sympathy for appellant’s family, which “didn’t create
this situation,” and for the victims, who endured a nightmare.

    The judge then focused on the seriousness of appellant’s crimes, that
citizens have the right to “live free and safe,” “without fear that some young
person is [] gonna choose to take a drug that makes them psychotically
violent with super human strength, break into their home and threaten
their lives.” The trial court stated:

      It is extremely significant to note that but for serendipity,
      which means accident . . . [that] [h]uman life was not taken in
      this case, the life of the defendant, which the State has argued
      completely justifiably could’ve been taken the minute he
      busted through the . . . window or thank God the lives of the
      2 people who spoke here as the potential victims in the case.
      I say potential victims because their lives were not taken and
      that is just serendipity, period, that they are alive today,
      period. It was the defendant’s bad choice and the grave
      situation that he created that is of extremely and of an
      extremely serious nature that makes this case extremely
      significant warranting serious punishment for the reasons I’ve
      stated already.

      ***


                                     -4-
     The State’s recommendation may seem harsh to some, but not
     to the Court because it reflects the danger to the community
     presented to the victims and to the community which came
     about by a choice of the defendant to take drugs that any
     person with common sense should know could bring that
     person taking such a drug to a courtroom here today to be
     sentenced by me such as you Mister Gallo.

   The judge felt that the seriousness of appellant’s crimes elevated
general deterrence—the need to deter others—to the most important
sentencing factor in the case.

     The criminal justice system is created to deter people from
     doing things that threaten[] the li[ves] of other people, period.
     The sentencing concern of deterrence, the need to deter others
     so inclined to take such drugs is so powerful in this case it
     overwhelms other factors such as the love of the family of the
     defendant, which I have sympathy for. Their belief in him
     despite his unwise, dangerous action in this case. The need
     for deterrence overwhelms the consideration that the
     defendant has no prior criminal history of conviction, which
     is reflected on his score sheet. The need for deterrence
     overwhelms any remorse or apology, that is to any reasonable
     person, including me, in the statement I’m sorry I took drugs
     that turned me into a violent psychopath and that I broke into
     your home and put your life in fear of, of death does not ring
     loudly to me or to the community. To the people of this
     community, the statements of the defendant’s family that he’s
     a kind, happy, loving, nice person, hard worker, positive
     influence on children, given the facts of this case do not ring
     loudly to them, meaning they are not powerful mitigating
     factors, nor should they be in this case for the reasons I have
     stated.

     ***

     The sentence to be imposed will not involve probation because
     the main purpose of this sentence is deterrence. Every young
     person who would make such a choice should hear and heed
     the sentence imposed today. Every parent that hears of this
     sentence should tell their adolescent children of this sentence.
     This should be done so that no young person makes the
     choice to take drugs that any person would reasonably know
     would make them psychotically violent.

                                   -5-
    The judge adjudicated appellant guilty of all crimes to which he pleaded
no contest. On the misdemeanor trespass charge, he sentenced appellant
to 300 days in jail. For each of the three felonies, he sentenced appellant
to five years in prison, with one term running consecutively to the other
two, for a total of ten years in prison. This sentence was less than the
fifteen-year sentence that the court might have lawfully imposed for three
third degree felonies.

                                Discussion

   Appellant complains because the circuit judge “relied entirely on
general deterrence—to the exclusion of all other factors—to justify” the
sentence imposed. This is a mischaracterization of the sentencing process,
where the record demonstrates that the judge relied on at least four
sentencing considerations that have long been part of Anglo-American
criminal law.

   First, the judge focused on the egregious facts of this case and decided
that appellant’s conduct was deserving of punishment; under retribution
theory, it is “just that one who has caused harm to others should himself
suffer for it.” WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON
CRIMINAL LAW (1972), § 5. Also, “it is claimed that retributive punishment
is needed to maintain respect for the law and to suppress acts of private
vengeance.” Id. This case cannot be separated from the victims’
blamelessness and the trauma they endured; they were in the privacy of
their home when, in the dark of night, appellant crashed through a window
and physically attacked them.

   Second, the judge engaged in prevention, which “aims to deter the
criminal himself (rather than to deter others) from committing further
crimes, by giving him an unpleasant experience he will not want to endure
again.” Id. Appellant blames his predicament on the illegal drugs he
ingested. Relapse is not uncommon among users of illicit drugs, which
may lead to recidivism. The sentence here incentivized appellant not to
relapse.

   Third, the sentence imposed furthered the goal of incapacitation, where
the notion is “that society may protect itself from persons deemed
dangerous because of their past criminal conduct by isolating these
persons from society.” Id.

     Finally, as described by the judge, the sentence sought to implement
the policy of general deterrence which seeks to deter others from taking
illicit drugs that might turn them into “violent psychopath[s].” This court

                                    -6-
has recognized that general deterrence is a proper sentencing factor in
Florida:

      Deterrence, along with retribution, is one of “the traditional
      aims of punishment.” “The premise is that by confining
      criminal offenders in a facility where they are isolated from the
      rest of society, a condition that most people presumably find
      undesirable, they and others will be deterred from committing
      additional criminal offenses.” This view of deterrence as a
      legitimate consideration in sentencing has been recognized in
      Florida both before and since the adoption of the [Criminal
      Punishment Code].

Charles v. State, 204 So. 3d 63, 66 (Fla. 4th DCA 2016) (internal citations
omitted). In Chambers v. State, 217 So. 3d 210, 212 (Fla. 4th DCA 2017),
we relied on Charles to conclude that “where a sentence comports with the
sentencing guidelines, a trial court’s consideration of deterrence as a
sentencing factor does not violate a defendant’s due process rights.” We
explained that in Charles we held that

      “it is not impermissible for a sentence to be used as a means
      of general deterrence.” There, we explained that “deterrence,
      both general (‘send a message to the community’) and specific
      (send a message to the individual being sentenced), is not
      merely one factor amidst the sea of relevant sentencing
      considerations; it is a key component of punishment itself—
      the ‘primary purpose’ of sentencing under the CPC [Criminal
      Punishment Code].”

Chambers, 217 So. 3d at 212 (alterations in original) (quoting Charles, 204
So. 2d at 66-67); see also Andrews v. State, 207 So. 3d 889, 890 (Fla. 4th
DCA 2017). The trial judge’s discussion of general deterrence in this case
fits comfortably within the Charles/Chambers recognition of general
deterrence as a valid sentencing consideration.

    As appellant notes in his brief, general deterrence as a sentencing tool
is not without its critics. But there is anecdotal support of its beneficial
effect—enforcement of DUI laws has contributed to the rise of ride-sharing
companies like Uber and Lyft and a concomitant decline in DUI arrests.
See Charles Rabin, DUI arrests in South Florida plummet. Uber, Lyft,
millennials among the reasons why, MIAMI HERALD, (July 31, 2018)
https://www.miamiherald.com/news/local/article215758380.html. Some
courts have questioned the deterrent effect of excessively long sentences.
See, e.g., U.S. v. Pressley, 790 F.3d 699, 701-02 (7th Cir. 2015) (involving

                                    -7-
36.67-year sentence). Appellant’s ten-year sentence does not approach
those long sentences that have drawn the ire of commentators.

   Appellant also argues that his sentence is “unconstitutionally
disproportionate.” He compares himself to other felons who had similar
CPC scores. Presumably, these similar scores were acquired by those
convicted of third degree felonies. This is an invalid comparison that
separates the sentence from the facts of the case.

   In his reply brief, appellant questions whether the State would have
been able to prove that he had the requisite intent to commit a burglary.
However, the plea bargain here did not preclude the trial judge from
examining all the facts of the case in arriving at an appropriate sentence.

    Only because of the work of appellant’s trial counsel and the generosity
of the prosecutor in reducing the first degree felony charge was appellant
offered the chance to plead guilty to a misdemeanor and three third degree
felonies instead of a felony carrying a maximum penalty of life
imprisonment. The victims were not out for blood—the woman said she
did not want the crime to “define the rest of [appellant’s] life” or hers. The
trial judge compassionately accepted the plea and sentenced appellant to
two-thirds of the maximum sentence. The length of the sentence imposed
here does not approach any conceivable constitutional limitation.

   Affirmed.

CONNER and FORST, JJ., concur.

                            *         *         *




                                     -8-
