Date: 10-10-2014

Case Style: Damiroquan McGill v. State of Florida

Case Number: 5D13-4552

Judge: Lawson

Court: Florida Court of Appeal, Fifth District on appeal from the Circuit Court, Seminole County

Plaintiff's Attorney: Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, Assistant
Attorney General, Daytona Beach, for
Appellee.

Defendant's Attorney: Allan Campbell, Lake Mary, for Appellant

Description: Damiroquan McGill appeals his twelve-year sentence for possession of a firearm
by a delinquent, which was direct filed and adjudicated in adult court. Although the
sentence was below the statutory maximum penalty, McGill correctly argues that the
sentencing court violated his due process rights by basing his sentence, at least in part,
on improper considerations. See Yisrael v. State, 65 So. 3d 1177, 1178 (Fla. 1st DCA
2011) (stating that "[c]onsideration of pending or dismissed charges during sentencing
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results in a denial of the defendant's due process rights"); Crouse v. State, 101 So. 3d
901, 903 (Fla. 4th DCA 2012), (stating that while a sentencing court may consider "any
and all information that reasonably might bear on the proper sentence," it may not
consider such constitutionally improper factors as “unsubstantiated allegations of
misconduct" (citations omitted)); cf. Jansson v. State, 399 So. 2d 1061, 1064 (Fla. 4th
DCA 1981) (stating that "a trial court can consider a defendant's prior arrests not leading
to convictions for purposes of sentencing so long as the court recognizes that these
arrests are not convictions or findings of guilt, and the defendant is given an opportunity
to explain or offer evidence on the issue of his prior arrests"). In this case, the judge's
comments indicate that the sentence was influenced by the judge’s belief that McGill had
committed acts of robbery, based solely upon unsubstantiated allegations and prior
charges that had not resulted in convictions. In addition, the judge indicated that the
sentence was influenced by a belief that McGill was affiliated with a gang. Although this
is a proper sentencing consideration, Crouse, 101 So. 3d at 903, the trial judge improperly
relied upon unsubstantiated allegations of McGill’s gang involvement in the form of
objected-to hearsay from a police detective. Id.; see also Jackson v. State, 588 So. 2d
1085, 1086 (Fla. 5th DCA 1991) (“Once the truth of the hearsay information presented at
the sentencing hearing was specifically disputed, the state was obligated to carry its
burden of corroborating the accuracy of the [information].” (citation omitted)).
We reverse McGill’s sentence and remand for a de novo sentencing hearing before
a different judge.

Outcome: REVERSED AND REMANDED FOR RESENTENCING.

Plaintiff's Experts:

Defendant's Experts:

Comments: