DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TONY GARCIA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-3751

[ August 7, 2019 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 

14CF012520AMB.

Carey Haughwout, Public Defender, and Jessica A. De Vera, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Paul Patti, III, 

Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Appellant, Tony Garcia, appeals his conviction and sentence for firstdegree arson of a dwelling. We affirm appellant’s conviction without 

further comment, but we reverse for resentencing. Although we disagree 

with appellant’s argument that the trial court imposed a vindictive 

sentence after participating in plea discussions, we conclude that 

appellant’s due process rights were violated because his sentence may 

have been based, at least in part, on an impermissible sentencing factor.

Appellant’s first trial on the arson charge resulted in a hung jury. 

Subsequently, at a bond revocation hearing, the State presented evidence 

that appellant had threatened a prosecution witness after the first trial.

Appellant’s second trial resulted in a guilty verdict. At sentencing, 

appellant moved for a downward departure sentence. The State filed a 

sentencing memorandum requesting that the trial court impose a sentence 

of seven years in prison. In support of its recommendation, the State cited 

the facts of the underlying crime as well as appellant’s post-arrest conduct, 
2

including threatening State witnesses. Attached to the State’s sentencing 

memorandum was a CD containing recorded jail calls in which appellant 

stated that he wished to harm a different State witness.

At the sentencing hearing, the prosecution relied upon its written 

sentencing recommendation, argued that a downward departure was not 

warranted, asserted that appellant’s offense “risked the lives of firefighters 

and his neighbors,” and emphasized appellant’s conduct of threatening 

the State’s witnesses after his arrest.1

The trial court denied appellant’s motion for downward departure and 

sentenced appellant to seven years in prison, stating:

Now, based on all the evidence, the severity of the crime, the 

issues that were testified to, this is [a] very, very sad situation 

all around, it really is. But even if I could depart, I do not 

believe I should depart and therefore, I’m sentencing Mr. 

Garcia to the 84 months that the state is requesting.

Regarding his sentence, appellant mainly argues on appeal that the

trial court imposed a vindictive sentence, but he also argues that his

sentence was influenced by impermissible sentencing factors. Without 

further comment, we reject appellant’s argument that the trial court 

imposed a vindictive sentence. We agree, however, with appellant’s 

argument that the trial court may have considered an impermissible factor 

in sentencing him.

A trial court’s consideration of an impermissible sentencing factor 

constitutes fundamental error in the sentencing process, which may be 

raised for the first time on direct appeal. Hillary v. State, 232 So. 3d 3, 4 

(Fla. 4th DCA 2017). “Whether a trial court violates a defendant’s due 

process rights by considering impermissible factors in sentencing is a 

question of law subject to de novo review.” Baehren v. State, 234 So. 3d 

799, 801 (Fla. 4th DCA 2018).

In Norvil v. State, 191 So. 3d 406, 407 (Fla. 2016), the Florida Supreme 

Court held that “a trial court may not consider a subsequent arrest 

without conviction during sentencing for the primary offense.” The Florida 

Supreme Court looked to the Criminal Punishment Code (“CPC”), 

including the statute governing PSI reports, in determining the factors that 

constitute appropriate sentencing considerations. Id. at 409. The court 

1 There is no indication in the record that appellant was ever arrested for or 

charged with his threats to harm State witnesses.
3

reasoned that “[t]he CPC is unambiguous concerning the factors a trial 

court may consider in sentencing a defendant” and that the legislature did 

not include subsequent arrests as a factor in the CPC. Id. In short, under 

the reasoning of Norvil, the only permissible sentencing factors are those 

enumerated in the CPC.

Courts applying Norvil have held that a trial court may not consider 

subsequent, uncharged misconduct when sentencing a defendant for the 

primary offense. See, e.g., Schwartzberg v. State, 215 So. 3d 611, 616 (Fla. 

4th DCA 2017) (“Finally, appellant argues the lower court erred when it 

considered subsequent, uncharged misconduct when sentencing him.

The state concedes error, citing Norvil v. State, 191 So. 3d 406 (Fla. 2016). 

We accept the state’s concession of error.”); Love v. State, 235 So. 3d 1037, 

1039 (Fla. 2d DCA 2018) (“Even though there is no indication that Love 

was arrested for or charged with the incidents at the jail, the reasoning in 

Norvil applies here. Indeed, prior to Norvil, our court held that incidents 

of misconduct occurring after the charged offense, some of which did not 

result in charges or arrests, were impermissible sentencing factors.”).

Here, appellant’s due process rights were violated because the State 

urged the trial court to consider an impermissible sentencing factor—

namely, incidents of misconduct occurring after the charged offense—and 

his sentence may have been based, at least in part, on that impermissible 

factor. While the trial court made no comment indicating that it had 

considered appellant’s subsequent misconduct in imposing sentence, the 

prosecutor’s recommendation at the sentencing hearing relied heavily 

upon the evidence of appellant’s post-arrest misconduct.

“It is the State’s burden to show that the trial court did not rely on 

impermissible factors in sentencing.” Strong v. State, 254 So. 3d 428, 432 

(Fla. 4th DCA 2018).

The State has not met that burden in this case. The trial court simply 

stated that its sentence was based upon “all the evidence, the severity of 

the crime, [and] the issues that were testified to . . . .” The trial court 

specifically stated that the sentence was based on “all the evidence,” and

nothing in the court’s statement indicated that the court did not consider 

the evidence of appellant’s post-arrest misconduct. Furthermore, the trial 

court imposed the exact sentence requested by the prosecutor. Thus, the 

record may reasonably be read to suggest that the sentence was based, at 

least in part, on an impermissible factor argued by the State.

In sum, although the trial court did not impose a vindictive sentence, 

the State has failed to meet its burden to show that the trial court did not 
4

impermissibly rely upon appellant’s post-arrest misconduct in sentencing 

him. We affirm appellant’s conviction but reverse his sentence and 

remand for resentencing before a different judge.

Affirmed in part, Reversed in part, and Remanded.

GROSS and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.