DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NICO VINCENZO GALLO,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D18-1236

[April 10, 2019]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Martin County; Lawrence M. Mirman, Judge; L.T. Case No. 43-2016-CF000919A.

Carey Haughwout, Public Defender, and Claire V. Madill, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Melynda L. 

Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

ON MOTION FOR REHEARING

GROSS, J.

We grant appellant’s motion for written opinion but deny his motion for 

rehearing and to certify conflict or a question of public importance. We 

affirm the conviction and sentence. We write to address several of 

appellant’s arguments regarding the sentence imposed by the circuit 

court.

The Crime

The victims in this disturbing case were a woman and her son. The 

woman was at home, sleeping in her bedroom, when she heard someone 

trying to enter through the front door. She called her son as she went to 

the living room. There, she saw a broken top window panel. She pulled 

back the drapes and saw appellant.
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Appellant said, “I’m sorry, I’m sorry . . . I’m going to die today.” 

Appellant then “cannonballed” through the bottom window panel into her 

living room and began to fight with the son as he approached to protect 

his mother. The son tried to hold appellant down, but he was overpowered. 

The woman hit appellant on the head with a baseball bat several times. 

The son continued to wrestle appellant, trying to restrain him. Appellant 

wrapped his legs around the son’s neck. The woman called 911—she said 

that she was bleeding and that her son was “opened up.” She said that 

appellant was trying to take the bat from her. She said, “He’s just going 

crazy, he’s attacking.”

A deputy arrived at the house and saw “blood everywhere.” The 

woman’s son was on top of appellant. The deputy secured appellant in 

wrist restraints, but when asked for his name, appellant “swept [the 

deputy’s] legs out from underneath him” and kicked the back of the 

deputy’s leg. While another officer was retrieving leg restraints, appellant 

grabbed the first deputy’s pants and “shredded ‘em.” After appellant was 

secured with leg restraints, his mood alternated between periods of calm 

and aggression. While calm, he told the officers his name and that he took 

drugs. When he was aggressive, “he was trying to drink the blood that 

was pooling from his own head on the floor” and “appeared [to be] having 

a conversation with Satan.”

At a sentencing hearing, the woman described the incident after 

appellant broke into the living room:

[Appellant] started screaming kill me, kill me, I’m going to die 

tonight. My son kept telling him just calm down, stop, I’m not 

going to hurt you, just hold still. I had bolted past to grab my 

phone and I grabbed a baseball bat that I kept next to my bed, 

I came out and I, my fear was running everywhere, my biggest 

fear was that I was going to accidentally hit my son instead 

and I didn’t wanna do that, I thought I might kill my son. I 

called 9-1-1, he would not hold still, my son kept wrestling 

with him and I started hitting him with the bat. I was in fear 

of my life, I was in fear of my son’s life. This, they, they had, 

there, there was like super human strength, the[y] just 

wrestled and rolled around, the furniture moved, it’s a tile 

floor, the[] furniture moved, they were on the sofa, the 

ottoman, the loveseat, the chair um, he would not stop. At 

one point he attempted to grab the baseball bat from me, I 

was able to keep that away from him and every time I could I, 

I took a swing. I was, like I said, I was fighting for our lives.
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After appellant was restrained, the woman’s arm was bleeding from the 

broken glass. She was taken to the hospital and received stitches. She 

lost the window, rugs, blinds, and furniture. She had to have a hazmat 

crew come in to clean up the blood. She was “financially destroyed 

because of the debt.”

The day after the incident, appellant told a detective that “he ha[d] 

taken an assortment of narcotics . . . cannabis, acid, Methylone,” and that 

he “started hearing voices in his head, so he ran out of his house down the 

street and . . . the voices told him that he needed to go inside [the victims’] 

house.”

Appellant was charged with burglary of a dwelling with an assault or 

battery, a first degree felony “punishable by imprisonment for a term of 

years not exceeding life imprisonment.” § 810.02(2)(a), Fla. Stat. (2017). 

He was also charged with battery on a law enforcement officer, criminal 

mischief ($1,000 or more) and resisting an officer with violence, all third 

degree felonies carrying a maximum penalty of five years’ imprisonment. 

See §§ 784.07(2)(b), 806.13(1)(b)3., 843.01, Fla. Stat. (2017).

The Plea Bargain

On the life felony burglary charge, appellant pleaded no contest to the 

lesser-included offense of trespass, which in most instances is a 

misdemeanor. § 810.08, Fla. Stat. (2017). Appellant also pleaded no 

contest to the remaining three charges. The plea was open, with the 

proviso that the State would reduce the burglary charge to a trespass and 

that appellant would pay $21,279.89 in restitution to the woman and her 

son, various medical facilities, and Martin County Fire and Rescue. 

Appellant scored thirty-three points on his CPC scoresheet. As the court 

explained, this score made sentencing “a completely wide open situation. 

Anywhere from time served . . . to the maximum, which now becomes 15 

years in prison,” plus the misdemeanor.

The Sentencing Hearing

During the sentencing portion of the hearing, two responding officers 

testified about the chaos at the crime scene and appellant’s bizarre 

behavior. A detective described his interaction with appellant on the day 

after the incident. The State played the woman’s frantic 911 call. The son 

described his struggle with appellant and how he “knew [he] was in a little 

bit of trouble” when appellant wrapped his legs around the son’s neck. 

Finally, the woman told her story of the crime, much of which is quoted 

above.
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On appellant’s behalf, his uncle said he was a “kind, loving, happy kid” 

who was a hard worker and for whom this incident in his life was “just an 

anomaly.” Appellant’s father also said that appellant was a “hard worker” 

who understood that he “took this false step” and “made a mistake.” The 

father said that appellant “want[s] to make this right. He does want to 

make restitution and he does wanna move on with his life” and “use this 

as a learning experience and hopefully help someone else down the road.” 

Appellant expressed his remorse—“I wish I could turn back the clock so 

many times . . . I think about this every single day of my life.” He promised 

the court to “make right on this” no matter what it took.

The State recommended ten years in prison as a sentence, or in the 

alternative, five years in prison, followed by ten years of probation with no 

chance of early termination. Appellant’s counsel advocated for twentyfour months in prison, followed by any probation sentence the court found 

appropriate.

In a considered sentencing pronouncement, the trial judge spoke at 

length about what was on his mind regarding an appropriate sentence. 

The judge expressed sympathy for appellant’s family, which “didn’t create 

this situation,” and for the victims, who endured a nightmare.

The judge then focused on the seriousness of appellant’s crimes, that 

citizens have the right to “live free and safe,” “without fear that some young 

person is [] gonna choose to take a drug that makes them psychotically 

violent with super human strength, break into their home and threaten 

their lives.” The trial court stated:

It is extremely significant to note that but for serendipity, 

which means accident . . . [that] [h]uman life was not taken in 

this case, the life of the defendant, which the State has argued 

completely justifiably could’ve been taken the minute he 

busted through the . . . window or thank God the lives of the 

2 people who spoke here as the potential victims in the case. 

I say potential victims because their lives were not taken and 

that is just serendipity, period, that they are alive today, 

period. It was the defendant’s bad choice and the grave 

situation that he created that is of extremely and of an 

extremely serious nature that makes this case extremely 

significant warranting serious punishment for the reasons I’ve 

stated already.

***
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The State’s recommendation may seem harsh to some, but not 

to the Court because it reflects the danger to the community 

presented to the victims and to the community which came 

about by a choice of the defendant to take drugs that any 

person with common sense should know could bring that 

person taking such a drug to a courtroom here today to be 

sentenced by me such as you Mister Gallo.

The judge felt that the seriousness of appellant’s crimes elevated 

general deterrence—the need to deter others—to the most important 

sentencing factor in the case.

The criminal justice system is created to deter people from 

doing things that threaten[] the li[ves] of other people, period. 

The sentencing concern of deterrence, the need to deter others 

so inclined to take such drugs is so powerful in this case it 

overwhelms other factors such as the love of the family of the 

defendant, which I have sympathy for. Their belief in him 

despite his unwise, dangerous action in this case. The need 

for deterrence overwhelms the consideration that the 

defendant has no prior criminal history of conviction, which 

is reflected on his score sheet. The need for deterrence 

overwhelms any remorse or apology, that is to any reasonable 

person, including me, in the statement I’m sorry I took drugs 

that turned me into a violent psychopath and that I broke into 

your home and put your life in fear of, of death does not ring 

loudly to me or to the community. To the people of this 

community, the statements of the defendant’s family that he’s 

a kind, happy, loving, nice person, hard worker, positive 

influence on children, given the facts of this case do not ring 

loudly to them, meaning they are not powerful mitigating 

factors, nor should they be in this case for the reasons I have 

stated.

***

The sentence to be imposed will not involve probation because 

the main purpose of this sentence is deterrence. Every young 

person who would make such a choice should hear and heed 

the sentence imposed today. Every parent that hears of this 

sentence should tell their adolescent children of this sentence. 

This should be done so that no young person makes the 

choice to take drugs that any person would reasonably know 

would make them psychotically violent.
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The judge adjudicated appellant guilty of all crimes to which he pleaded 

no contest. On the misdemeanor trespass charge, he sentenced appellant 

to 300 days in jail. For each of the three felonies, he sentenced appellant 

to five years in prison, with one term running consecutively to the other 

two, for a total of ten years in prison. This sentence was less than the 

fifteen-year sentence that the court might have lawfully imposed for three 

third degree felonies.

Discussion

Appellant complains because the circuit judge “relied entirely on 

general deterrence—to the exclusion of all other factors—to justify” the 

sentence imposed. This is a mischaracterization of the sentencing process, 

where the record demonstrates that the judge relied on at least four 

sentencing considerations that have long been part of Anglo-American 

criminal law.

First, the judge focused on the egregious facts of this case and decided 

that appellant’s conduct was deserving of punishment; under retribution 

theory, it is “just that one who has caused harm to others should himself 

suffer for it.” WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., HANDBOOK ON 

CRIMINAL LAW (1972), § 5. Also, “it is claimed that retributive punishment 

is needed to maintain respect for the law and to suppress acts of private 

vengeance.” Id. This case cannot be separated from the victims’ 

blamelessness and the trauma they endured; they were in the privacy of 

their home when, in the dark of night, appellant crashed through a window 

and physically attacked them.

Second, the judge engaged in prevention, which “aims to deter the 

criminal himself (rather than to deter others) from committing further 

crimes, by giving him an unpleasant experience he will not want to endure 

again.” Id. Appellant blames his predicament on the illegal drugs he 

ingested. Relapse is not uncommon among users of illicit drugs, which 

may lead to recidivism. The sentence here incentivized appellant not to 

relapse.

Third, the sentence imposed furthered the goal of incapacitation, where 

the notion is “that society may protect itself from persons deemed 

dangerous because of their past criminal conduct by isolating these 

persons from society.” Id.

Finally, as described by the judge, the sentence sought to implement 

the policy of general deterrence which seeks to deter others from taking 

illicit drugs that might turn them into “violent psychopath[s].” This court 
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has recognized that general deterrence is a proper sentencing factor in 

Florida:

Deterrence, along with retribution, is one of “the traditional 

aims of punishment.” “The premise is that by confining 

criminal offenders in a facility where they are isolated from the 

rest of society, a condition that most people presumably find 

undesirable, they and others will be deterred from committing 

additional criminal offenses.” This view of deterrence as a 

legitimate consideration in sentencing has been recognized in 

Florida both before and since the adoption of the [Criminal 

Punishment Code].

Charles v. State, 204 So. 3d 63, 66 (Fla. 4th DCA 2016) (internal citations 

omitted). In Chambers v. State, 217 So. 3d 210, 212 (Fla. 4th DCA 2017), 

we relied on Charles to conclude that “where a sentence comports with the 

sentencing guidelines, a trial court’s consideration of deterrence as a 

sentencing factor does not violate a defendant’s due process rights.” We 

explained that in Charles we held that

“it is not impermissible for a sentence to be used as a means 

of general deterrence.” There, we explained that “deterrence, 

both general (‘send a message to the community’) and specific 

(send a message to the individual being sentenced), is not 

merely one factor amidst the sea of relevant sentencing 

considerations; it is a key component of punishment itself—

the ‘primary purpose’ of sentencing under the CPC [Criminal 

Punishment Code].”

Chambers, 217 So. 3d at 212 (alterations in original) (quoting Charles, 204 

So. 2d at 66-67); see also Andrews v. State, 207 So. 3d 889, 890 (Fla. 4th 

DCA 2017). The trial judge’s discussion of general deterrence in this case 

fits comfortably within the Charles/Chambers recognition of general 

deterrence as a valid sentencing consideration.

As appellant notes in his brief, general deterrence as a sentencing tool 

is not without its critics. But there is anecdotal support of its beneficial 

effect—enforcement of DUI laws has contributed to the rise of ride-sharing 

companies like Uber and Lyft and a concomitant decline in DUI arrests. 

See Charles Rabin, DUI arrests in South Florida plummet. Uber, Lyft, 

millennials among the reasons why, MIAMI HERALD, (July 31, 2018)

https://www.miamiherald.com/news/local/article215758380.html. Some

courts have questioned the deterrent effect of excessively long sentences. 

See, e.g., U.S. v. Pressley, 790 F.3d 699, 701-02 (7th Cir. 2015) (involving 
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36.67-year sentence). Appellant’s ten-year sentence does not approach 

those long sentences that have drawn the ire of commentators.

Appellant also argues that his sentence is “unconstitutionally 

disproportionate.” He compares himself to other felons who had similar 

CPC scores. Presumably, these similar scores were acquired by those 

convicted of third degree felonies. This is an invalid comparison that 

separates the sentence from the facts of the case. 

In his reply brief, appellant questions whether the State would have 

been able to prove that he had the requisite intent to commit a burglary. 

However, the plea bargain here did not preclude the trial judge from 

examining all the facts of the case in arriving at an appropriate sentence.

Only because of the work of appellant’s trial counsel and the generosity 

of the prosecutor in reducing the first degree felony charge was appellant 

offered the chance to plead guilty to a misdemeanor and three third degree 

felonies instead of a felony carrying a maximum penalty of life 

imprisonment. The victims were not out for blood—the woman said she 

did not want the crime to “define the rest of [appellant’s] life” or hers. The 

trial judge compassionately accepted the plea and sentenced appellant to 

two-thirds of the maximum sentence. The length of the sentence imposed 

here does not approach any conceivable constitutional limitation.

Affirmed.

CONNER and FORST, JJ., concur.

* * *