                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

LEVAR JERMAINE TABORN                  NOT FINAL UNTIL TIME EXPIRES TO
TYSON,                                 FILE MOTION FOR REHEARING AND
                                       DISPOSITION THEREOF IF FILED
      Appellant,
                                       CASE NO. 1D15-4707
v.

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed October 5, 2017.

An appeal from the Circuit Court for Duval County.
Tatiana Salvador, Judge.

Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, for
Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, for Appellee.


WINSOR, J.

      Before Levar Tyson pulled a gun in a strip-club parking lot, he already had at

least four felony convictions, including at least one for possession of a firearm by a

felon. Tyson had already served part of a seven-year sentence in New Jersey for,

among other things, weapon possession. So after the strip-club incident led to a new
felon-in-possession conviction, it should have been no surprise that the sentencing

court considered Tyson’s track record. The court gave Tyson ten years—below the

fifteen-year maximum, but more than the seven years Tyson requested.

      On appeal, Tyson does not challenge his conviction, and he does not contest

the fact that his sentence fell within the permissible statutory range. His sole

argument is that the trial court violated due process by announcing a rule that it

would not “go backwards” by imposing a lighter sentence than Tyson earned for his

earlier convictions. We review for fundamental error. See Cromartie v. State, 70 So.

3d 559, 563 (Fla. 2011). 1

                                         I.

      At the sentencing hearing, Tyson apologized for his conduct and for the

burden it put on Florida’s taxpayers. He acknowledged his past convictions, and he

explained that he hoped to become a productive member of society. He asked the

court for leniency. Through a letter submitted to the court, Tyson’s stepmother also

sought mercy, explaining that although Tyson’s criminal record was “extreme,” he




      1
      Tyson argues he preserved this issue by filing a rule 3.800(b) motion below.
But Cromartie foreclosed this argument, making clear our review is only for
fundamental error. See 70 So. 3d at 563.


                                         2
was making efforts to change for the better. Tyson’s lawyer requested a seven-year

sentence.

      The State sought ten years. The prosecutor recounted the facts of the crime,

explained Tyson’s prior record, and argued that Tyson was a danger to society. The

prosecutor also argued that Tyson’s earlier punishments had been ineffective: “[I]t’s

clear by his previous record and continued activity that he has not been deterred by

the justice system and by the sentences that he has received in his previous cases

from New Jersey. . . . He continues to commit crimes.”

      Before pronouncing Tyson’s sentence, the court indicated it would consider

the evidence presented at trial, Tyson’s statements at sentencing, the stepmother’s

letter, Tyson’s prior record, and all arguments of counsel. It also offered this

commentary:

      And as you all know, obviously, when it comes to folks who have a
      prior history that come before me, I do look to see not only what the
      prior offenses are, but what was the prior sentence. Because one thing
      I am not going to do, is go backwards. That just doesn’t make any sense.
      Because obviously if they’ve been convicted, and given two years and
      they still are committing crimes and then they’re convicted and given
      four years and they’re still committing crimes and then they’re
      convicted or come before—we’re going to just keep going up until
      perhaps some amount of time will make a difference and will send the
      proper message to the defendant.

The court then imposed the ten-year sentence we now review.



                                         3
                                          II.

      In Cromartie v. State, the supreme court held that a trial judge’s stated policy

to always “round up” sentences to the next whole year violated due process because

it “improperly extended” the defendant’s sentence in “an arbitrary manner.” 70 So.

3d at 564. Relying almost exclusively on Cromartie, Tyson argues that the trial

court’s announced I’m-not-going-to-go-backwards policy likewise violated due

process. We cannot accept this argument.

      Unlike the Cromartie sentence, there was nothing arbitrary about Tyson’s ten-

year sentence. In Cromartie, the trial judge had sentenced the defendant to eight

years, after “rounding up” from the 7.8 year minimum. Id. at 560. After the discovery

of a scoresheet error led to resentencing, the court again “rounded up”—but this time

from 6.16 years (the revised scoresheet minimum) to seven. When pressed about the

increased effect of the rounding, the judge said, “I round off in years. What can I tell

you? That’s just my way.” Id. She then shared her view that it “really doesn’t make

a difference. . . . I’m telling you in the real world whether you give somebody nine

years or ten years doesn’t much matter, you know. It just doesn’t. And to have—

that’s an argument over minutia.” Id. In other words, the trial judge rounded up for




                                           4
no reason at all, other than her view that it made no difference and was just “her

way.” This, the Florida Supreme Court held, was arbitrary and violated due process.2

      Tyson’s sentence, on the other hand, came after the trial court’s consideration

of Tyson’s particular case. The court evaluated the whole record—Tyson’s

statement, the facts of his crime, and his substantial criminal history. The sentence

that followed was not the product of some arbitrary rule; it was not ordered “without

any reflection on the individual merits of this particular defendant’s case,” Pressley

v. State, 73 So. 3d 834, 838 (Fla. 1st DCA 2011). On the contrary, it was the product

of the court’s studied consideration. Cf. McKinney v. State, 27 So. 3d 160, 162 (Fla.

1st DCA 2010) (criticizing trial court’s commentary on utility of youthful offender

program but concluding “we are satisfied that the court’s [sentencing] decision . . .

was properly based upon a consideration of Appellant’s circumstances and the

serious nature of his crimes, rather than the court’s opinion of the youthful offender

program”).




      2
        This court, too, found merit in the argument that the “policy of mechanically
rounding up a prison sentence to the nearest whole number . . . without any reflection
on the individual merits of a particular defendant’s case is arbitrary.” Cromartie v.
State, 16 So. 3d 882, 883 (Fla. 1st DCA 2009), quashed by 70 So. 3d 559 (Fla. 2011).
We held, though, that the issue was unpreserved. Id.
                                          5
      Moreover, to the extent the trial court imposed a strict I’m-not-going-to-go-

backwards policy, we are certain it made no difference. In Cromartie, the supreme

court concluded that “the trial judge’s stated policy ‘improperly extended’

Cromartie’s incarceration.” 70 So. 3d at 564. Absent that arbitrary policy, the

Cromartie sentence would have been shorter.3 Not so here. Indeed, Tyson himself

asked for seven years, which apparently exceeds the time he did in New Jersey. He

cannot ask for seven years below and argue here that it was error to not consider

less. Cf. Universal Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 65 (Fla. 2012)

(“Fundamental error is waived under the invited error doctrine.”).

      The dissent convincingly explains the problems with rigid never-backwards

policies: not all crimes are equal, people change, and so forth. But none of that helps

us here, where the stated policy did not increase the sentence. Nothing in Cromartie

requires resentencing whenever a judge announces a “policy” that might—in some

other case—yield a due process violation. Cromartie would not require, for example,

a new sentence if a judge announced he never gave probation but then detailed why




      3
        Notably, the supreme court did not remand for consideration of a new
sentence; it remanded with directions that Cromartie be sentenced “at the bottom of
the guidelines.” Cromartie, 70 So. 3d at 564. It obviously found the trial court would
have imposed a minimum sentence but for its arbitrary rounding policy.
                                          6
the particular circumstances of that particular case justified a decades-long prison

sentence.

      The trial court did not violate Tyson’s due process rights.

      AFFIRMED.

KELSEY, J., concurs; MAKAR, J., dissents with opinion.




                                         7
MAKAR, J., dissenting.

      A third rail in Florida’s criminal sentencing process is touched when trial

judges say they won’t consider or summarily reject otherwise lawful sentencing

options due to their individual sentencing practices, such as a policy of only rounding

up sentencing recommendations to the next year or categorically excluding an

available sentencing alternative. Cromartie v. State, 70 So. 3d 559, 564 (Fla. 2011)

(trial judge’s “policy of ‘rounding up,’” and thereby improperly increasing

defendant’s length of incarceration, “violated [the defendant’s] right to due

process”); Pressley v. State, 73 So. 3d 834, 836 (Fla. 1st DCA 2011) (“[T]rial court’s

arbitrary policy not to consider ‘boot camp,’ which is a type of youthful offender

sentence, without any reflection on the merits of [the defendant’s] case constitutes a

denial of due process and, thus, fundamental error.”). This type of error is akin to

where unlawful factors are considered as a result of trial judges’ personal sentencing

philosophies. See Fraser v. State, 201 So. 3d 847, 849-50 (Fla. 4th DCA 2016)

(holding invalid a trial judge’s general policy of refusing to consider mental disorder

as a statutorily-permissible mitigating circumstance for which a downward departure

was permissible).

      On the theory that doing so is a denial of due process and fundamental error,

our supreme court has required resentencing even when a trial court has sentenced a

                                          8
defendant within a lawful range. Cromartie, 70 So. 3d at 564 (“[T]he sentence

imposed was within the legal guidelines—it was above the minimum required by the

scoresheet and below the statutory maximum, but the trial judge’s stated policy

‘improperly extended’ [the defendant’s] incarceration in an arbitrary manner.”); see

also Pressley, 73 So. 3d at 838 (“The sentence imposed [but reversed on appeal] was

within the legal guidelines.”). And our Court and others have reversed for

resentencing where, although the trial court appears to have otherwise generally

exercised appropriate discretion based on valid considerations, it also made a

statement of its sentencing policy that conflicted with and thereby undermined

observance of legitimate sentencing factors. See Pressley, 73 So. 3d at 838 (“[T]he

trial court failed to explain in any manner why the trial court decided not to consider

a youthful offender sentence. We find that the trial court made no comments that

would convince us that the trial court properly exercised its discretion.”); see

also Fraser, 201 So. 3d at 850 (“The pertinent issue is not whether the court failed to

take Fraser’s mental health into account at all, but whether it refused to consider his

mental health needs as a basis for downward departure as a matter of policy.”).

      At Tyson’s sentencing, the trial judge considered a range of permissible

factors in deciding what sentence was appropriate (Tyson’s scoresheet set forth a

minimum sentence of thirteen and a half months; the statutory maximum was fifteen

                                          9
years). And the trial judge made the common sense point that a repeat offender with

a prior history of offenses might require a stiffer punishment to both penalize the

offender and protect society. But the judge’s general sentencing policy was to

increase the length of a defendant’s sentence beyond what had been meted out

against him in prior cases:

      Because one thing I am not going to do, is go backwards. That just
      doesn’t make any sense. Because obviously if they’ve been convicted,
      and given two years and they still are committing crimes and then
      they’re convicted and given four years and they’re still committing
      crimes and then they’re convicted or come before—we’re going to just
      keep going up until perhaps some amount of time will make a
      difference and will send the proper message to the defendant.

Because Tyson had five prior felonies in New Jersey (four in 2007 and one in 2001),

and most recently had been sentenced to seven years in prison (for the four 2007

felonies that included possession of a weapon), the trial judge’s policy eliminated

consideration of all lawful sentencing options less than or equal to seven years of

imprisonment, which included the sentence Tyson sought. Pursuant to the judge’s

policy, Tyson was sentenced to ten years of incarceration for the one charge of

firearm possession by a felon; the fact that Tyson’s ten-year sentence is within a

lawful range doesn’t matter much, if at all. See, e.g., Cromartie, 70 So. 3d at 564.

      The seemingly straight-forward application of Cromartie’s fundamental error

rule suggests no wiggle room in reversing this type of upward-ratcheting sentencing

                                         10
policy, one that might make sense in its application in cases of intractable re-

offenders; after all, an increased sentence is oftentimes the only effective option that

serves societal goals of deterrence, retribution, and eliminating recidivism (putting

aside rehabilitation) as to some hardened recidivists. Imposing an increased sentence

in such cases wouldn’t be arbitrary, it would be entirely rational. But the takeaway

from Cromartie isn’t just prohibiting judicial policies that lack an explanation (such

as “rounding up” sentences); it also includes the elimination of across-the-board

judicial policies that deny defendants the individualized sentencing process

that Cromartie envisions is necessary to establish due process. See Fraser, 201 So.

3d at 849 (“[T]rial court’s commentary during the sentencing hearing reflects that

the court was deeply concerned, irrespective of Fraser’s individual situation, by the

general concept that mental health could be considered a basis for a departure

sentence.”) (emphasis added); Pressley, 73 So. 2d at 838 (“[T]he trial court’s stated

policy of not considering ‘boot camp,’ . . . without any reflection on the individual

merits of this particular defendant’s case is arbitrary and, consequently, a denial of

due process.”) (emphasis added). This is particularly true where the current offense

is qualitatively or quantitatively different from the past offenses, thereby making an

inflexible policy—increasing a current sentence above prior sentences—an ill-suited

apples-to-oranges approach. A new but minor offense might warrant less

                                          11
punishment than the sentence for a cluster of more severe crimes committed years

ago.

       A fly in the ointment is our decision in McKinney v. State, 27 So. 3d 160, 162

(Fla. 1st DCA 2010), which held that a trial judge’s views about the “efficacy of the

youthful offender program as a whole [had] no place in its sentencing decision,” but

that

       when those comments are viewed in context of trial court’s complete
       explanation of its sentencing decision, we are satisfied that the court’s
       decision not to sentence Appellant as a youthful offender was properly
       based upon a consideration of Appellant’s circumstances and the
       serious nature of his crimes, rather than the court’s opinion of the
       youthful offender program.

Id. The panel concluded the trial court didn’t abuse his discretion despite his

discounting the youthful offender program, but its decision predated Cromartie,

which came out the next year.

       Assuming that McKinney survives Cromartie, such that potentially prejudicial

comments or policy statements made in the sentencing process can be deemed

innocuous, what appears to have occurred in this close case falls more in line

with Cromartie, which involved automatically increased sentences via the trial

judge’s rounding up policy. Similarly, a policy of increasing a sentence beyond prior

ones—no matter the context—would exclude a range of lawful sentencing options

and thereby be in conflict with Cromartie. The trial judge said she considered all
                                          12
factors, such as Tyson’s remorse, apology, and efforts to right himself, which is

commendable, but her statement about not going “backwards” established that

nothing less than a sentence greater than seven years would be considered, which

violates Cromartie. Such a policy makes a difference. Not only will no defendant

receive consideration of a sentence other than one greater than the longest already

served, no defendant will ask for a lesser sentence than one already served, even if

within a lawful range. Keep in mind that Tyson asked for the same sentence he’d

just completed, which was perhaps all he realistically could hope for given the trial

judge’s stated policy; he wasn’t required to ask for a lesser punishment, such as

parole, to raise a Cromartie claim, whose focus is on the sentencing process not the

sentencing result.

      What results is a rule of law that says a trial judge must consider all lawful

sentencing options and not apply an individual judicial policy that runs counter to

the legislatively-crafted punishment code. Doing so does not eliminate the role of a

trial judge’s discretion at sentencing, which is broad and subject generally to

deferential review. Individualized sentencing does not mean imposition of a lesser

punishment; it can mean a stepped-up sentence to “send a message” to intractable

offenders in individual cases. But given the fixedness of the fundamental error rule

in Cromartie, a reversal and remand for resentencing is required here.

                                         13
