DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOSEREN DESHUNE DELANCY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-43

[September 20, 2018]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; Lawrence M. Mirman, Judge; L.T. Case No. 

432015000390CFAXMX.

Carey Haughwout, Public Defender, and Paul Edward Petillo, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Luke R. Napodano

and Ilana Mitzner, Assistant Attorney General, West Palm Beach, for 

appellee.

WARNER, J.

Defendant appeals a final judgment of conviction and sentence of ten 

years for high speed or wanton fleeing and resisting an officer without 

violence. He challenges his conviction by contending that his trial counsel 

was ineffective on the face of the record by failing to object to the 

impeachment of his star witness based upon pending charges against that 

witness. He further challenges his sentence as based on a 

misapprehension of fact and violation of the equal protection clauses of 

the United States and Florida Constitutions. We affirm the convictions,

concluding that even if his counsel were ineffective, appellant has not 

shown that there was a reasonable probability that the result of the 

proceedings would have been different, given the other evidence presented. 

As to the sentence, while it is stiff, the sentence is within the maximum 

statutory limit, and it is neither based on a misapprehension of fact nor 

constitutionally infirm.
2

At trial, three officers involved in the apprehension of appellant 

testified. The first officer testified that he was patrolling in his sheriff’s 

vehicle when he noticed that the driver of a vehicle passing in the opposite 

direction was not wearing a seatbelt and ducked down to conceal his face. 

A passenger was also in the vehicle. The officer made a U-turn to effect a 

traffic stop. A second officer in the area passed by the stopped vehicle,

and as he did he had a direct view of the driver, whom he was able to 

identify in court as the appellant.

The first officer stopped the vehicle; however, when he approached it, 

the driver sped off through a residential area and past a daycare center at 

speeds of over ninety miles an hour. The driver ran a red light and nearly 

lost control of his vehicle as he was turning a corner. A twelve-year-old 

girl was in the vicinity and pointed the officers in the direction that the 

vehicle fled. A third deputy saw the driver stop and run away from his 

vehicle. The deputy followed the driver on foot through a residential 

neighborhood, losing sight of him for a few seconds, but then he saw him 

arguing with a woman and trying to get into her house. He was sure that 

this man was the driver.

The deputy ordered him to stop, but the driver entered the house. One 

of the two other officers then arrived, and they entered the house after the 

driver. The suspect eventually emerged from a room, drenched in sweat 

and out of breath. The officers detained him. The deputy testified the man 

who came out of the room was the same person and in the same clothes 

as the driver. He wore the same printed white shirt and long black shorts, 

but was wearing a different hat. The officer identified appellant as that 

individual. The second officer who helped chase the suspect into the 

house also identified the appellant and the clothes he wore. The third

officer, who arrived after appellant was detained, testified that the person 

detained had the same clothes as the driver when he first saw him. A 

dashcam video from one officer’s vehicle was also played for the jury, and 

it showed the officer running toward the house after spotting appellant.

Appellant’s mother was the woman at the house where appellant was 

arrested. For the defense, she testified that appellant was at home with 

her all evening. They heard sirens late in the evening, and she went 

outside to investigate. She saw officers walking up the street and into her 

driveway. Her door was cracked open, and when the officer saw appellant, 

he said, “You’re the one.” The officers then entered her home with guns 

drawn. She stated that appellant was wearing a white shirt.
3

The defense also called McIntyre, the passenger in the fleeing car who 

had also been arrested that evening. He testified that the vehicle was being 

driven by his cousin, Parks, not the appellant. They were returning home 

from a construction job with his uncle. After they dropped off the uncle, 

police stopped them, and his cousin fled the scene. McIntyre stayed in the 

car and was detained by the deputies. He testified that his cousin Parks 

was wearing a black shirt and hat, and he had a similar complexion and 

beard as appellant.

McIntyre further testified that he did not know appellant and did not 

recognize him at trial. On cross-examination, the prosecutor noted that 

McIntyre was in jail clothes and questioned him about his many pending 

charges, including robbery with a deadly weapon, aggravated assault with 

a firearm, and grand theft. Defense counsel did not object to this line of 

questioning.

On rebuttal, the State recalled the three officers. The first officer 

testified that he knew Parks, and he had no doubt that Parks was not the 

driver. The other officers testified that the driver was wearing a white shirt, 

not a black shirt, and introduced a booking photo which showed appellant 

in a white shirt.

After closing arguments, the jury found appellant guilty of high speed 

or wanton fleeing and resisting an officer without violence. The court 

adjudicated appellant guilty and sentenced him to ten years in prison for 

the fleeing charge and to time served for resisting without violence. 

Appellant also filed two motions to correct his sentence, alleging racial 

disparity in sentencing. The court denied the first motion. It did not rule 

on the second motion; thus, it is deemed denied.

Appellant contends that his trial counsel was ineffective on the face of 

the record because he failed to object when the prosecutor impeached

defense witness McIntyre by questioning him about his pending charges. 

Because claims of ineffective assistance of counsel are fact-specific, 

defendants generally should raise them in motions for postconviction 

relief. Latson v. State, 193 So. 3d 1070, 1073 (Fla. 1st DCA 2016). 

However, a claim of ineffective assistance may be considered for the first 

time on direct appeal if: the ineffectiveness is apparent on the face of the 

record; there is undisputable prejudice; and there is no conceivable 

tactical explanation for the conduct. Hills v. State, 78 So. 3d 648, 652 

(Fla. 4th DCA 2012). “This exception is rarely applicable,” but if so, this 

court reviews de novo whether the claim meets the deficiency and 
4

prejudice prongs of Strickland v. Washington, 466 U.S. 668 (1984). Id. To 

show prejudice,

[t]he defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.

Strickland, 466 U.S. at 694; see Thompson v. State, 990 So. 2d 482, 488, 

490 (Fla. 2008) (finding prejudice is not whether deficient conduct “more 

likely than not” affected the trial outcome, but whether it undermined 

confidence in the outcome and rendered it unreliable).

Appellant claimed, in his defense, that he was not in the vehicle. He 

argues McIntyre was his star witness, but the State destroyed his 

credibility by improperly questioning him about his pending felony 

charges. The prosecutor also highlighted the fact that McIntyre was in jail 

(“I couldn’t help but notice your attire, are you currently incarcerated?”).

Appellant contends the questioning resulted in fundamental error, or his 

attorney’s failure to object was ineffective assistance apparent on the face 

of the record.

The State concedes, and we agree, it was improper for the State to 

cross-examine McIntyre on his pending charges. Fulton v. State, 335 So. 

2d 280, 282-83 (Fla. 1976) (holding the State may not question a defense 

witness on his or her pending criminal charges of which he or she has not 

been convicted). Furthermore, there does not seem to be a strategic 

explanation for counsel’s failure to object, given the number of pending 

charges discussed.

Nevertheless, under Strickland, the defense must show that this 

deficiency has undermined confidence in the outcome of the proceeding or 

that the error was fundamental such “that a verdict of guilty could not 

have been obtained without the assistance of the alleged error.” Walden 

v. State, 123 So. 3d 1164, 1166 (Fla. 4th DCA 2013).

Given the testimony and evidence, neither fundamental error nor 

Strickland prejudice has been shown. McIntyre’s testimony that appellant 

was not the driver of the vehicle was cumulative to the mother’s testimony 

that appellant was home with her. Testimony that is cumulative to other 

witnesses’ testimony can render the improper impeachment harmless. 

See Bedford v. State, 589 So. 2d 245, 252 (Fla. 1991). Furthermore, 
5

McIntyre testified that he did not know appellant. While improper 

impeachment of a defense witness may have a “spill-over effect” on the 

credibility of the defense where the witness is a friend or relative, see 

Fulton, 335 So. 2d at 285, where there is no connection between the 

witness and the defendant, the harmful “spill-over” effect is not present.

See Bedford, 589 So. 2d at 252.

Here, the verdict was amply supported by the testimony of the three 

officers, two of whom positively identified appellant as the driver of the 

vehicle. The dashcam video of the officer rushing into the house directly 

refuted the mother’s testimony that the officers observed appellant

through an open door before entering the house, and it is consistent with 

the officer’s testimony. One of the officers knew Parks, whom McIntyre 

said was the driver, and testified that the driver was not Parks. Finally, 

the State never mentioned McIntyre’s convictions in closing argument and 

did not seek to capitalize on the improper impeachment. Compare with 

Roper v. State, 763 So. 2d 487, 489 (Fla. 4th DCA 2000) (finding harmful 

error where during closing argument, the State focused on improper 

impeachment evidence and appellant’s testimony that he lived in jail, 

telling the jury this was relevant to his credibility).

Because the appellant has not shown fundamental error or Strickland 

prejudice, we affirm his conviction on this issue and the remaining issues 

raised.

Appellant also challenges his ten-year sentence. His lowest permissible 

sentence under the Criminal Punishment Code was 13.5 months, but his 

maximum possible sentence for high speed fleeing and eluding was fifteen

years. He had a total of forty-six sentencing points. At sentencing, the 

trial court found the circumstances of the car chase, including travelling 

at very high rates of speed through a residential neighborhood and close 

to daycare facilities, warranted a higher sentence. The evidence showed 

that a twelve-year-old girl was endangered in the chase. The court 

acknowledged that it had sentenced others convicted of the same crime to 

lesser sentences, but that the circumstances of this crime, and the danger 

to which it exposed the community, required a more severe sentence. The 

court considered mitigating factors, including that appellant appeared

before the court despite his serious charges and that his “significant felony 

record” did not include violent crimes. However, the judge found the 

mitigating factors didn’t “add up to much” considering the nature of his 

crime. It then imposed the ten-year sentence.
6

After sentencing, appellant filed two motions pursuant to Florida Rule 

of Criminal Procedure 3.800(b)(2), which permits a court to correct a 

sentencing error pending appeal. In his first motion, he argued the court 

sentenced him based on a misapprehension of fact—that the court 

sentenced other people who had committed the same crime to much lesser 

sentences. Thus, he contended the court violated his due process rights. 

He attached the judgment and arrest affidavit from another case in which 

he claimed that the court had sentenced a defendant to significantly less 

time where the crimes were very similar. The court denied his first motion, 

finding no sentencing error.

Later, appellant filed a second motion, again arguing that the court 

sentenced him based on a misunderstanding of its past sentencing 

practices. He summarized four cases where the same trial court sentenced 

defendants, whose lowest permissible sentences ranged from about fifteen

to thirty months, to much lesser sentences for the same offense of high 

speed fleeing (the highest sentence was six years). He attached various 

court documents from those cases. The court did not rule on this second 

motion within sixty days, so it is deemed denied. Fla. R. Crim. P. 

3.800(b)(2)(B).

Appellant’s motions may not be properly entertained pursuant to rule 

3.800(b)(2). That rule is not used to address errors in the sentencing 

process, but errors in an order entered as a result of the sentencing 

process. Jackson v. State, 983 So. 2d 562, 572-74 (Fla. 2008) (holding a 

defendant improperly files a rule 3.800(b) motion if his or her claim deals 

with an error in the sentencing process, rather than the sentencing order; 

if he or she does so, this court applies “the general rule that an 

unpreserved error may be considered on appeal only if the error is 

fundamental”); see Josephs v. State, 86 So. 3d 1270, 1272 (Fla. 4th DCA 

2012) (finding defendant does not preserve a claim that the sentencing 

court relied on improper factors with a rule 3.800(b)(2) motion; however, 

this court may review procedural issues for fundamental error or a denial 

of due process). Because the appellant’s claim is not a sentencing error, 

the contemporaneous objection rule applies, or the error must be 

fundamental. See Jackson, 983 So. 2d at 576.

Even if the motions were proper to preserve the issue, we conclude that 

they do not require reversal of the sentence. Although appellant contends 

in his motions that the trial court’s sentence relied on a misapprehension 

of the court’s sentencing decisions in other cases, the court itself noted 

that it had sentenced other defendants committing the same crime to less 

time. It considered the facts of this case and the high-speed chase through 
7

the residential neighborhood to be more egregious than those cases. 

Sentencing is a highly fact-intensive decision based upon the particular 

circumstances of each defendant’s case. While appellant suggested that 

other cases had similar facts, the trial court denied the motion, and we 

cannot conclude that the court either misapprehended the facts of other 

cases or that they were so similar as to call into question the fairness of 

this sentence. See Maddox v. State, 760 So. 2d 89, 99 (Fla. 2000) (noting 

court must have sufficient factual record on appeal to determine if 

fundamental error occurred).

In his rule 3.800(b)(2) motions, appellant also alleged that a racial 

disparity existed in sentences in the Nineteenth Judicial District. He noted

that in cases where the defendants’ CPC’s lowest possible sentence score 

were similar to his, the average sentence was 20.44 months for white 

defendants, but the average sentence for black defendants was 40.28 

months. In contrast, he received a ten-year sentence. In his second 

motion, appellant provided the Department of Corrections sentencing 

information from 2016-17, showing there were seventy-six defendants 

sentenced in the Nineteenth Circuit who scored from 13.5 to 15.5 months. 

He again argued that there was pronounced racial disparity because the 

average white sentence was 31.42 months, but the average black sentence 

was 39.67 months. His sentence was 120 months.

This issue may not be raised as a rule 3.800(b)(2) motion, as it does not 

constitute a claim of error in the sentencing order. See Jackson, 983 So. 

2d at 572-74. Appellant did not raise this issue at sentencing. However,

it may be raised as a question of fundamental error.

Appellant asks this court to reconsider the legal principle that a 

defendant cannot successfully challenge his sentence based on statistical 

evidence of racial disparity in sentencing. McCleskey v. Kemp, 481 U.S. 

279, 292-94 (1987) (finding a defendant who alleges an equal protection 

violation must prove both a discriminatory purpose and effect; he or she 

must present evidence specific to his own case, instead of relying on 

statistical evidence of disparities); Foster v. State, 614 So. 2d 455, 463 (Fla. 

1992) (citing McCleskey to find the defendant could not prove that 

prosecutors acted with discriminatory purpose by presenting statistics 

that white-victim defendants were more likely to be convicted of firstdegree murder; he presented no evidence of purposeful discrimination in 

his own case); Hartley v. State, 650 So. 2d 1044, 1048-49 (Fla. 4th DCA 

1995) (holding the defendant was not entitled to a hearing on his equal 

protection claim, where he presented statistics that more minorities were 
8

assigned to the habitual felony offender division than whites, because his 

claims rested on actions of unrelated decision makers).

It is not within our province to reconsider and reject the United States 

Supreme Court’s determination in McCleskey. Like the defendants in the 

McCleskey line of cases, appellant has not proven that the judge acted with 

discriminatory purpose in his case. As the State notes, each case is 

unique. For example, appellant referenced nine white defendants who had 

CPC scores similar to appellant’s score, but who received lesser sentences.

However, they committed different crimes and had different criminal 

histories. Here, the court weighed appellant’s criminal background, as 

well as what it viewed as mitigating and aggravating circumstances of the 

crime.

Moreover, the statistical evidence that minority defendants received 

sentences on average approximately eight months longer than white 

defendants with similar CPC scores cannot explain the eighty-month 

difference between the sentence in this case and the average sentence for 

other similarly-scored minority defendants. From the judge’s comments 

at sentencing, he was motivated to punish the defendant for the danger in 

which he placed the community by his conduct and not any racial animus.

The CPC allows the judge to sentence a defendant anywhere from the 

least possible sentence score to the statutory maximum. Here, the judge

did not sentence the appellant to the maximum of fifteen years. “[C]urrent 

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.” Alfonso-Roche v. State, 199 So. 3d 941, 946 (Fla. 4th DCA 2016) 

(Gross, J., concurring); see also § 921.0024 (2), Fla. Stat. (2016) (“The 

permissible range for sentencing shall be the lowest permissible sentence 

up to . . . the statutory maximum . . . .”). The court did not deviate from 

the statute.

While the DOC statistics showing a disparity between average 

sentences for white defendants and minority defendants are disturbing, 

they do not show that racial bias motivated the decision in this case. We 

note that based upon recent investigations by the Sarasota Herald Tribune 

into racial disparity in sentencing,1 the Legislature has authorized a study 

 

1 Josh Salman, Emily Le Coz, & Elizabeth Johnson, Bias on the Bench, SARASOTA 

HERALD-TRIBUNE (Dec. 8, 2016), http://projects.heraldtribune.com/bias/; Josh 

Salman, Emily Le Coz, & Elizabeth Johnson, Tough on Crime: Black Defendants 
9

of fairness in sentencing. Florida Senate Bill 1392 (2018),

https://www.flsenate.gov/Session/Bill/2018/01392. From that study, 

we certainly hope and desire that any necessary protections against actual

racial bias in sentencing can be implemented to assure that it is not 

present in the criminal justice system.

For the foregoing reasons, we affirm the conviction and sentence of 

appellant.

MAY and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

 

Get Longer Sentences in Treasure Coast System, SARASOTA HERALD-TRIBUNE (Dec. 

8, 2016), http://projects.heraldtribune.com/bias/bauer.