          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                                FUTO CHARLES,
                                   Appellant,

                                         v.

                              STATE OF FLORIDA,
                                   Appellee.

                                  No. 4D11-3314

                                  [May 31, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 2008CF009440AXX.

  Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, J.

    Futo Charles appeals his convictions and sentences for several gang-
related crimes. We affirm the convictions without comment and write only
to address the propriety of the sentencing process. Charles argues his
sentences should be reversed because they may be based on improper
sentencing considerations. We agree, reverse the sentences, and remand
for resentencing by a different judge.

   Charles was indicted along with several co-defendants on allegations
that he was a member of the “Top 6” gang, a violent criminal enterprise
operating in Palm Beach County. Charles initially cooperated with the
authorities in hopes of securing a plea agreement. The record reveals that
two plea agreements were reached—the first imposed an eight-year
sentence and the second imposed a fifteen-year sentence.                Both
agreements were rejected by Judge Karen Miller, who had presided over
the trials of two of Charles’s co-defendants.1 At his change of plea hearing,

1   Charles’s co-defendants received sentences of twenty-five years each.
the lead investigator of the Top 6 gang testified that Charles’s cooperation
had been instrumental in dismantling the gang. The investigator, along
with the State, urged the court to accept the plea agreement imposing the
fifteen-year sentence so that Charles would continue to cooperate with the
authorities. Despite this testimony, Judge Miller would not accept the
plea.

    After a two-week trial, the jury found Charles guilty of racketeering,
conspiracy to commit racketeering, possession of Ecstacy/MDMA, and
possession of marijuana. He was also convicted of twelve predicate
offenses, but was found not guilty of all of the predicate offenses that
involved gun violence.

    According to his scoresheet, Charles’s lowest permissible sentence was
79.8 months. The State urged the court to impose the maximum sentence
based on Charles’s lengthy prior record and to “send a clear message to
everyone who decides to participate in a violent criminal organization” that
“a life in crime does not pay.” Following argument by both sides, without
any comment or elaboration, Judge Miller sentenced Charles to nearly
sixty-six years in prison.2 This was the sentence requested by the State
and the maximum possible within the range set by the Criminal
Punishment Code (“CPC”).

    The State argues that this court must affirm the sentence because it
falls within the CPC’s permissible statutory range. “Indeed, 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).         However, when a trial court relies on
impermissible factors in sentencing a defendant, the court violates the
defendant’s due process rights. See, e.g., Seays v. State, 789 So. 2d 1209,
1210 (Fla. 4th DCA 2001). Our standard of review is de novo. Cromartie
v. State, 70 So. 3d 559, 563 (Fla. 2011).

   When sentencing a defendant within the statutory range, the judge
“may consider a variety of factors, including the defendant’s criminal
history, employment status, family obligations, and over-all reputation in
the community.” Imbert v. State, 154 So. 3d 1174, 1175 (Fla. 4th DCA
2015) (citing § 921.002(g), Fla. Stat. (2012)). The sentencing factors
properly considered by the trial court relate to the defendant, his offense,
and the victim. See Apprendi v. New Jersey, 530 U.S. 466, 481 (2000)

2 Thirtyyears for racketeering, thirty years for conspiracy to commit racketeering,
five years for possession of Ecstacy/MDMA, and eleven months and twenty-nine
days for possession of marijuana, all counts to run consecutively.

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(finding that it is permissible for judges to exercise discretion in imposing
a sentence within the range prescribed by statute, “taking into
consideration various factors relating both to offense and offender”).

    The Florida Supreme Court recently held that the trial court violated a
defendant’s due process rights at sentencing by considering a subsequent
arrest without conviction during sentencing for the primary offense. Norvil
v. State, 41 Fla. L. Weekly S190 (Fla. Apr. 28, 2016). The court discussed
sentencing criteria that may be properly considered by trial judges:

      With regard to the sentencing criteria enunciated in chapter
      921, along with its applicable definitions, we conclude that the
      CPC is unambiguous concerning the factors a trial court may
      consider in sentencing a defendant. The Legislature included
      prior arrests as information that is helpful in imposing the
      appropriate sentence for a defendant. § 921.231(1)(c), Fla.
      Stat. (2010). However, if the Legislature had intended to
      include subsequent arrests and their related charges as
      permissible sentencing factors, it would have done so.

Id. at S191 (emphasis added). We note that the CPC does not list sending
a message to the community or deterring persons other than the individual
defendant being sentenced as sentencing factors properly considered by
trial courts.

    Under the CPC, the “primary purpose” of sentencing is “to punish the
offender.” § 921.002(1)(b), Fla. Stat. (2011). Rehabilitation of the offender
is another stated goal which is “subordinate to the goal of punishment.”
Id. It may be argued that sending a message to the community is a factor
properly considered by a trial court because it achieves sentencing’s oft-
stated goal of deterrence. Trial judges should not consider general
deterrence when imposing individual sentences for several reasons. First,
the goal of general deterrence is already addressed by the sentencing
scheme put in place by the Legislature. Second, the CPC does not include
general deterrence in its “unambiguous” list of factors a trial court may
consider in sentencing an individual defendant. § 921.231(1). If the
Legislature had intended to include general deterrence as a permissible
sentencing factor, “it would have done so.” Norvil, 41 Fla. L. Weekly at
S191. Third, we find it fundamentally unfair to single out one defendant
for especially harsh treatment in order to serve the utilitarian purpose of
sending a message to the community. See Beno v. State, 581 N.E.2d 922,
924 (Ind. 1991) (finding trial judge’s desire to “send a message” to other
drug dealers was not a proper reason to aggravate a sentence);
Commonwealth v. Howard, 677 N.E.2d 233, 237 (Mass. App. Ct. 1997)

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(holding a sentencing judge may not punish a defendant for any conduct
other than that for which he stands convicted in a particular case).
Finally, and particularly relevant in this case, experts dispute whether
lengthy sentences have any deterrent effect whatsoever on a defendant’s
fellow gang members. E.g., United States v. Presley, 790 F.3d 699, 701
(7th Cir. 2015).3

   We hold that where a trial court imposes a sentence on an individual
defendant with the intent to “send a message” to the community, the
sentence rests on an impermissible sentencing consideration. Because
the record in this case reflects that the trial court may have relied on an
impermissible consideration, the State bore the burden to demonstrate
that the improper consideration “played no part in the sentence imposed.”
Epprecht v. State, 488 So. 2d 129, 131 (Fla. 3d DCA 1986). Here, the State
did not recognize its burden and made no attempt to establish that the
sentence was based on proper considerations.

    At bar, Charles cooperated with the authorities for two years providing
information which helped dismantle the Top 6 gang. The State and
Charles previously agreed to a fifteen-year sentence because of his
assistance. Yet after trial, the State urged the court to impose a sentence
of sixty-six years even though the jury had acquitted the defendant of all
of the violent charges.

   The trial judge sat through a two-week trial and may well have
sentenced Charles based solely on factors properly considered. However,
because the judge may have imposed the harshest sentence possible
within the statutory range as a result of her consideration of an
impermissible sentencing factor, and because the State failed to show that
the sentence was based on properly-considered factors, we reverse and
remand for resentencing by a different judge.

    Affirmed in part, reversed in part, remanded with instructions.



3  In Presley, Judge Richard Posner points out that criminals engaged in
dangerous activities are generally undeterred by the length of a possible sentence.
Id. (citing A. Mitchell Polinsky & Steven Shavell, On the Disutility and Discounting
of Imprisonment and the Theory of Deterrence, 28 J. LEGAL STUD. 1, 4–6 (1999),
and Paul H. Robinson & John M. Darley, The Role of Deterrence in the Formulation
of Criminal Law Rules: At Its Worst When Doing Its Best, 91 GEO. L.J. 949, 954
(2003)); see also Katelyn Carr, Comment, An Argument Against Using General
Deterrence as a Factor in Criminal Sentencing, 44 CUMB. L. REV. 249, 261 (2014)
(dispelling the deterrence rationale for crimes instigated by street gangs).

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GROSS, J., concurs.
FORST, J., dissents with opinion.

FORST, J., dissenting.

   I respectfully dissent.4 Although I join the majority’s decision to affirm
the convictions, I am unable to support a reversal of Appellant’s sentence
based merely on the prosecution’s statement that the trial court should
“send a clear message to everyone who decides to participate in a violent
criminal organization” that “a life in crime does not pay.” The judge did
not respond in any fashion to these statements and the sentence imposed
by the trial court, though clearly eye-raising, was within the range set by
the CPC.

    Judge Stevenson’s opinion for the majority presents a compelling and
thoughtful argument “that where a trial court imposes a sentence on an
individual defendant with the intent to ‘send a message’ to the community,
the sentence rests on an impermissible sentencing consideration.” It is
true that Florida’s appellate courts have held that a trial court may not
impose a departure sentence simply because he or she believes it will serve
as a deterrent to others or that it will send a message to the community.
E.g., Wilson v. State, 524 So. 2d 1161, 1162 (Fla. 2d DCA 1988); Mitchell
v. State, 507 So. 2d 686, 688 (Fla. 1st DCA 1987). They have also held
that, in juvenile cases, the trial court may not depart from the
recommended sentence of the Department of Juvenile Justice (DJJ) in
order to send a deterrent message to others in the community. E.g., C.C.B.
v. State, 828 So. 2d 429, 431 (Fla. 1st DCA 2002).

    In the adult context, the rationale for the rule is that the sentencing
guidelines were adopted to promote uniformity in sentencing; allowing
deviation on such basis defeats this purpose and would allow for
aggravation in every instance. See Santiago v. State, 478 So. 2d 47, 48
(Fla. 1985); Smith v. State, 482 So. 2d 469, 471 (Fla. 5th DCA 1986);
Williams v. State, 462 So. 2d 23, 24 (Fla. 4th DCA 1984). In juvenile cases,
the rationale for the rule is linked to the statutory requirement that if the
trial court elects to depart from the DJJ’s recommended sentence, then
the court must state the reasons in writing and the reasons must reference
the characteristics of the restrictiveness level vis-à-vis the needs of the
child. See A.G. v. State, 737 So. 2d 1244, 1247-48 (Fla. 5th DCA 1999).


4 In fact, I underscore the term “respectfully,” as this is one of Judge Stevenson’s
last opinions for this Court after over twenty years of meritorious and
distinguished service.

                                         5
   The instant case, however, does not involve a departure sentence. The
sentences imposed for each offense were not beyond the maximum
possible sentences under the CPC. “In sentencing within the law’s
minimum and maximum, the discretion afforded is about as broad as
discretion can be for trial judges.” Whitmore v. State, 27 So. 3d 168, 172-
73 (Fla. 4th DCA 2010). I am unaware of any Florida decision holding
that, when determining an appropriate sentence within the confines of the
CPC, which allows for a sentence of anywhere between the lowest
permissible sentence and the statutory maximum, the trial court errs in
considering the deterrent effect the sentence will have on others, let alone
that consideration of such fact amounts to a violation of a defendant’s
constitutional rights. The majority opinion relies upon Indiana and
Massachusetts decisions to support its holding, and the one adult
sentencing case relied upon by Appellant in his initial brief for the
argument that “[a] sentence greater than the recommended sentence can’t
be based on the court’s desire to send a message to others” involved a
departure sentence, not a sentence within the range of the maximum
possible sentences under the CPC. Spivey v. State, 512 So. 2d 322, 324
(Fla. 3d DCA 1987).

    The majority opinion correctly notes that, under the CPC, the “primary
purpose” of sentencing is “to punish the offender.” However, deterrence
(along with retribution) is one of “the traditional aims of punishment.”
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963); Goad v. Fla. Dep’t
of Corr., 845 So. 2d 880, 884 (Fla. 2003); see also Pell v. Procunier, 417
U.S. 817, 822 (1974) (recognizing the function of the correctional system
is to deter others from crime); United States v. Gomez, 797 F.2d 417, 420
(7th Cir. 1986) (commenting that, “far from being a constitutional
violation,” the trial court’s statement that it “hope[d] that the sentence
imposed would serve as a deterrent to others who might contemplate
following in” defendant’s footsteps was “well stated”); State v. Brewer, 767
So. 2d 1249, 1253 (Fla. 5th DCA 2000) (stating “[t]here are four penological
goals involved in criminal sentencing:              retribution, deterrence,
incapacitation, and rehabilitation”); Boyd v. State, 546 So. 2d 132, 133
(Fla. 4th DCA 1989) (noting that “one purpose of punishment is
deterrence, as it surely must be”), decision quashed, 558 So. 2d 1025 (Fla.
1990).     Thus, deterrence, both general (“send a message to the
community”) and specific (send a message to the individual being
sentenced), is not a mere sentencing goal; it is a component of punishment
itself—the “primary purpose” of sentencing under the CPC.

    Due to the unusual scenario discussed in the majority opinion, there
appears to be a problem in search of a solution. However, Appellant has
failed to establish that the trial court abused its discretion in rejecting the

                                      6
two plea deals (and there is no rule addressing ineffective assistance of
opposing counsel), and the sentences imposed are within the sentencing
guidelines. Taking the position that general deterrence is an improper and
impermissible sentencing consideration is contrary to our legal tradition
and is not supported by the CPC’s failure to specifically note deterrence as
a purpose of sentencing because deterrence is in fact included within the
meaning of punishment, the specified “primary purpose” of sentencing
under the CPC. Thus, I am unable to join the majority in sending this case
back for resentencing and respectfully dissent.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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