State of Florida v. Tony Garcia

Supreme Court of Florida
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No. SC19-1870
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STATE OF FLORIDA,
Petitioner,

vs.

TONY GARCIA,
Respondent.

August 25, 2022

COURIEL, J.

We have for review the decision of the Fourth District Court of

Appeal in Garcia v. State, 279 So. 3d 148, 149 (Fla. 4th DCA 2019),

which affirmed the Respondent’s conviction for arson but found

that his due process rights were violated because his sentence may

have been based, at least in part, on a factor the trial court was not

permitted to consider: Garcia’s misconduct while out on bond.1

Finding that the trial court committed no fundamental error, we

1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
quash the Fourth District’s decision to the extent that it requires

the trial court to resentence the Respondent.

I

On June 11, 2014, Tony Garcia’s mortgage lender sent him

notice that, in a month, his home would be sold at foreclosure.

Seventeen days later, Garcia’s neighbor saw the house go up in

flames and called 911. The State charged Garcia with arson for

setting fire to the place. Garcia’s first trial ended in a hung jury,

and, with his second trial pending, a judge released him on bond.

As the evidence later heard by the sentencing judge would

establish, Garcia made a menace of himself while out on bond. On

one occasion, while driving with a suspended license, he left the

scene of a car crash and was arrested. Another day, shaking and

crying as he did, Garcia aimed a gun in the face of a neighbor who

had stopped by Garcia’s house to pick up some tools and have a

beer; the neighbor did not call the police. Just two days after that

episode, the police were summoned to Garcia’s ex-wife’s house,

where Garcia had gone to retrieve guns from a safe. They found

him banging on her door, acting in a manner that to them

suggested intoxication, mental disturbance, or both. Garcia

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denounced an officer on the scene with a racial epithet; the officer

deescalated the situation and gave Garcia a ride home.

No sooner had Garcia gotten out of the officer’s car than he

struck up an argument with his neighbor, threatening to shoot him

and the officer who had driven him home. The officer, at that point

having heard enough, took Garcia to a mental health facility and

sought to have him involuntarily examined under the Baker Act. 2

Not an hour later, Garcia had walked out of the facility and was on

the street again. Another officer, having received a tip about

Garcia’s whereabouts, found him eating chicken wings and drinking

beer at a local bar and returned him to the mental health facility.

Learning all this, the trial court expressed its concern for the

safety of Garcia and of the community and revoked Garcia’s bond.

He would await retrial on his arson charge in jail. While there, as

the trial court would later learn, his threatening conduct continued.

2. Section 394.463, Florida Statutes, allows a law
enforcement officer to take into custody and deliver to an
appropriate facility any person displaying specified signs of mental
illness, including signs that “[t]here is a substantial likelihood that
without care or treatment the person will cause serious bodily harm
to himself or others in the near future.” § 394.463(1)(b)(2), Fla.
Stat. (2014).

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On a call with his ex-wife, Garcia said that he would break his

daughter-in-law’s neck if he ever saw her again. On another call,

he told his ex-wife that he wanted to summon a gang to his

daughter-in-law’s house but was hesitant to do so knowing they

would also “take out” his grandson.

Garcia proceeded to his second trial and was convicted of first-

degree arson. 3 The judge ordered a presentence investigation

report. The report showed that Garcia had a 12th-grade education;

that he was unemployed due to disability; that he had a criminal

history (one conviction for battery and one for the time he drove on

a suspended license while out on bond); and that his minimum and

maximum permissible sentences were 34.8 months and 360

3. In both trials, the jury heard evidence about the foreclosure
of the home and about how the fire may have been started;
evidence, for example, that firefighters found a leaking propane
tank in the living room—the valve left open—and gas cylinders lying
around the kitchen, one of which was in a closed toaster oven. In
the second trial, however, the jury also heard that Garcia had given
up on keeping the home, supported by evidence that he made no
effort to pay the mortgage. They also heard from the officer who
first notified Garcia of the fire. As the officer entered a local bar
where he heard he might find Garcia, Garcia raised his hand and
said, “I’m here,” suggesting Garcia knew that the police would be
looking for him. According to the officer, Garcia seemed
unsurprised when the officer told him there was an “incident” at his
house.

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months, respectively. The report concluded that Garcia failed to

cooperate with the court and the law, and that despite suffering

from stomach cancer and being confined to a wheelchair, he was a

threat to himself and society.

Garcia moved for a downward departure from the lowest

permissible sentence as calculated under the Criminal Punishment

Code; he wanted a sentence of probation. He argued that he was

severely ill with terminal cancer and required significant medical

attention to maintain his current state of health. The State, for its

part, recommended a sentence of 84 months. In its sentencing

submission, it laid out Garcia’s conduct while out on bond,

including his threats to witnesses, argued that the defendant’s

conduct had callously endangered the lives of neighbors and first

responders, and argued Garcia had proffered no evidence that he

required specialized medical treatment.

The sentencing court conducted the analysis we required in

Banks v. State, 732 So. 2d 1065 (Fla. 1999), and declined to depart

from the minimum sentence. It said:

I’ve taken into consideration all the evidence, the
PSI, the state’s argument, the defense’s argument . . . .
Now, based on all the evidence, the severity of the crime,

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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 with restitution paid to [the lender], state
court costs and an adjudication.

On direct appeal to the Fourth District, Garcia claimed the

sentencing court imposed a vindictive sentence. Garcia, 279 So. 3d

at 150. The Fourth District affirmed in part and reversed in part.

Id. at 151. It found that the trial court committed fundamental

error by considering an impermissible sentencing factor—“namely,

incidents of misconduct occurring after the charged offense.” Id. at

150. The Fourth District held that “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 impermissibly rely upon

appellant’s post-arrest misconduct in sentencing him.” Id. at 151.

For the proposition that a sentencing court may not consider a

defendant’s postarrest misconduct, the Fourth District relied on our

decision in Norvil v. State, 191 So. 3d 406 (Fla. 2016). Garcia, 279

So. 3d at 150. 4 It noted that “[c]ourts applying Norvil have held that

4. This case provides no occasion to reconsider Norvil. For
one thing, defense counsel in that case preserved an objection to
the trial court’s consideration of postarrest misconduct. And, also

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a trial court may not consider subsequent, uncharged misconduct

when sentencing a defendant for the primary offense.” Id.

Declining to find that, as Garcia had argued, the trial court imposed

a vindictive sentence, the Fourth District nonetheless reversed on

Garcia’s alternative theory that the trial court committed

fundamental error when it considered impermissible sentencing

factors. It found that the State had failed to sustain what the

Fourth District characterized as the State’s burden “to show that

the trial court did not rely on impermissible factors in sentencing,”

even though “the trial court made no comment indicating that it

had considered appellant’s subsequent misconduct in imposing

sentence.” Id. at 150 (quoting Strong v. State, 254 So. 3d 428, 432

(Fla. 4th DCA 2018)).

II

Whether it is fundamental error for a trial judge to consider

evidence of any postarrest misconduct in fashioning a sentence is a

pure question of law, which we review de novo. Cromartie v. State,

70 So. 3d 559, 563 (Fla. 2011).

unlike this case, that one turned on an interpretation of chapter
921, Florida Statutes (2010).

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A

We have maintained a general rule that an appellate court

should confine parties’ arguments to those raised in the courts

below. See Ashford v. State, 274 So. 2d 517, 518 (Fla. 1973) (“It is

well established that this Court will not consider issues not

presented to the trial court unless fundamental error can be

shown.”); Gibson v. State, 351 So. 2d 948, 950 (Fla. 1977) (“Except

where the error is fundamental, an appellate court must confine

itself to a review of those questions which were before the trial court

and upon which a ruling adverse to the appealing party was

made.”). We have recognized an exception to the general rule,

however, where the error complained of for the first time on appeal

is fundamental error. Ashford, 274 So. 2d at 518; Gibson, 351 So.

2d at 950.

Nobody disputes that Garcia failed to preserve his claim for

review with a contemporaneous objection. Garcia’s counsel did not

object to the State’s discussion of his misconduct while on bond at

all, let alone on the basis that the court impermissibly considered

Garcia’s postarrest misconduct. As we have stated previously:

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The requirement of a contemporaneous objection is
based on practical necessity and basic fairness in the
operation of a judicial system. It places the trial judge on
notice that error may have been committed, and provides
him an opportunity to correct it at an early stage of the
proceedings. Delay and an unnecessary use of the
appellate process result from a failure to cure early that
which must be cured eventually.

Castor v. State, 365 So. 2d 701, 703 (Fla. 1978). In light of Garcia’s

failure to preserve the issue, appellate review is conditioned on

finding that the trial court’s alleged consideration of Garcia’s

postarrest misconduct constitutes fundamental error.

In the sentencing context, we have found fundamental error

very rarely. For example, courts have found such error where

courts have imposed an illegal sentence. See Bain v. State, 730 So.

2d 296, 305 (Fla. 2d DCA 1999) (reversing a fifteen-year mandatory

minimum sentence as an illegal sentence in excess of the statutory

maximum despite the lack of objection in the lower court); Parks v.

State, 765 So. 2d 35, 35-36 (Fla. 2000) (holding the defendant’s

sentence of twelve years’ probation illegal despite the lack of an

objection because it exceeded the statutory maximum for the third-

degree felonies of which he had been convicted). We have also

found fundamental error where a judge implemented an arbitrary

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policy of rounding up sentences, Cromartie, 70 So. 3d at 564; where

the sentencing guidelines used violated the single subject provision

of article III, section 6, of the Florida Constitution, Harvey v. State,

848 So. 2d 1060, 1064 (Fla. 2003); and where the court imposed a

sentence departing upward from the sentencing guidelines but

failed to give reasons for doing so, Thogode v. State, 763 So. 2d 281,

281-82 (Fla. 2000).

This case is different. The sentencing judge heard argument

on a motion for downward departure seeking a sentence of

probation. In considering the defendant’s amenability to such a

sentence, the court considered “all the evidence”—admittedly

including evidence about incidents that it previously considered in

revoking Garcia’s bond. Garcia, 279 So. 3d at 150. The sentencing

judge gave no indication of having given weight to any arrest or

charge supported merely by probable cause. 5 The court had before

5. The U.S. Supreme Court long ago decided that a
defendant’s conduct, proven by a preponderance of the evidence,
may be considered by a sentencing court. United States v. Watts,
519 U.S. 148, 156 (1997) (“[W]e have held that application of the
preponderance standard at sentencing generally satisfies due
process.” (citing McMillan v. Pennsylvania, 477 U.S. 79, 91-92
(1986) (“Like the court below, we have little difficulty concluding
that in this case the preponderance standard satisfies due

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it, in addition to the evidence that is the subject of this appeal,

Garcia’s previous conviction for aggravated battery and adjudication

of guilt for driving with a suspended license. It had heard, having

sat through two trials, evidence about the care with which Garcia’s

home had been primed for combustibility—and thus maximum

danger to his neighbors and first responders. It heard from

Garcia’s ex-wife regarding his medical issues and about the fact

that she had called the police because of his having made

process.”)), overruled on other grounds in Alleyne v. United States,
570 U.S. 99 (2013)). Thus the federal courts of every circuit allow a
sentencing judge to consider a defendant’s conduct—even if it has
been the subject of an acquitted charge—as long as the conduct
itself is established by a preponderance of the evidence. See Steven
M. Salky and Blair G. Brown, The Preponderance of Evidence
Standard at Sentencing, 29 Am. Crim. L. Rev. 907, 913 n.33 (1992)
(collecting cases); see, e.g., United States v. Barakat, 130 F.3d 1448,
1452 (11th Cir. 1997) (“Relevant conduct of which a defendant was
acquitted nonetheless may be taken into account in sentencing for
the offense of conviction, as long as the government proves the
acquitted conduct relied upon by a preponderance of the
evidence.”). This reliance on facts supported by a preponderance of
the evidence speaks to why consideration of an arrest, standing
alone, raises due process concerns: an arrest—again, standing
alone—is supported only by a determination of probable cause.
Here, of course, the sentencing court did not consider an arrest of
Garcia’s on any charge, standing alone; it considered his conduct
while out on bond, and had indeed made a ruling on evidence
relating to that conduct in revoking his bond, prior to sentencing.

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intoxicated threats at her door. In light of all these considerations,

looking at a sentencing range between 34.8 and 360 months, the

court reasoned that a sentence of 84 months was appropriate. We

cannot say that this determination reflects the trial court’s having

committed fundamental error on the order of an illegal sentence.

See Provence v. State, 337 So. 2d 783, 786 (Fla. 1976) (“We

recognize that the constitutional parameters of the trial judge’s

discretion in the area of sentencing are wide indeed.”). That

conclusion would fit oddly indeed with settled—and recently

reaffirmed—federal law. See Concepcion v. United States, 142 S. Ct.

2389, 2398 (2022) (“There is a ‘long’ and ‘durable’ tradition that

sentencing judges ‘enjo[y] discretion in the sort of information they

may consider’ at an initial sentencing proceeding.” (citing Dean v.

United States, 581 U.S. 62, 66 (2017))); Williams v. New York, 337

U.S. 241, 246 (1949) (“[B]oth before and since the American

colonies became a nation, courts in this country and in England

practiced a policy under which a sentencing judge could exercise a

wide discretion in the sources and types of evidence used to assist

him in determining the kind and extent of punishment to be

imposed within limits fixed by law.”); United States v. Booker, 543

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U.S. 220, 233 (2005) (“We have never doubted the authority of a

judge to exercise broad discretion in imposing a sentence within a

statutory range.”).

III

Because we do not find fundamental error in Garcia’s

unpreserved claim, we quash the decision of the Fourth District to

the extent it requires that the Respondent be resentenced.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, LAWSON, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs in result with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., concurring in result.

While judges are appropriately vested with latitude in the

discretion used to determine appropriate sentences, their discretion

is by no means unfettered and must always be exercised subject to

proper sentencing considerations and within the applicable

sentencing parameters.

In this case, the trial court improperly considered the post-

arrest misconduct that Garcia committed while out on bond.

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However, I concur with the majority’s conclusion that Garcia is not

entitled to relief because the trial court’s error did not amount to

fundamental error, a more stringent standard of review than the

harmless error standard that would have applied had a

contemporaneous objection been made when the improper evidence

was presented.

Application for Review of the Decision of the District Court of Appeal
Direct Conflict of Decisions

Fourth District – Case No. 4D17-3751

(Palm Beach County)

Ashley Moody, Attorney General, Tallahassee, Florida, Celia A.
Terenzio, Bureau Chief, and Paul Patti, III, Assistant Attorney
General, West Palm Beach, Florida,

for Petitioner

Carey Haughwout, Public Defender, and Claire V. Madill, Assistant
Public Defender, Fifteenth Judicial Circuit, West Palm Beach,
Florida,

for Respondent

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