LEVAR JERMAINE TABORN 

TYSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-4707

_____________________________/

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 
2

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.
3

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. 
4

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 tenyear 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 
5

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.
6

Moreover, to the extent the trial court imposed a strict I’m-not-going-to-gobackwards 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.
7

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.
8

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 
9

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 
10

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 
11

policy, one that might make sense in its application in cases of intractable reoffenders; 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 
12

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 
13

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.