Cherilus v. State
199 So. 3d 392
| Fla. Dist. Ct. App. | 2016Background
- Cherilus was convicted of delivery of cocaine under Fla. Stat. 893.13(l)(a),(2)(a).
- The State recommended 18 months in prison followed by two years of probation; the court imposed a 10-year term.
- Appellant argued three appellate issues: lack of knowledge element instruction, cross-examination limits on the informant’s background, and sentencing tied to alleged trial untruthfulness.
- The court affirmed the first two issues without discussion and reversed as to the third, remanding for resentencing before a different judge.
- During undercover operation, Cherilus gave a sample of cocaine for $50, believing he was helping a friend’s brother; the informant was a police officer.
- At trial Cherilus asserted entrapment and claimed pressure by the informant; recordings showed arrangements for cocaine; he testified no prior cocaine sales and that this was an isolated incident; sentencing reflected belief in his culpability, not entrapment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether knowledge is an element of delivery of cocaine | Cherilus | Cherilus | Remanded; issue not dispositive on final ruling |
| Whether cross-examination restrictions on informant background were improper | Cherilus | Cherilus | Affirmed without discussion; not central to reversal |
| Whether sentencing relied on untruthfulness at trial | Cherilus | Cherilus | Remanded for resentencing before a different judge; due process violated by reliance on purported untruthfulness |
Key Cases Cited
- Grosso v. State, 2 So.3d 362 (Fla. 4th DCA 2008) (governs sentencing legality; standard for review of sentencing factors)
- Josephs v. State, 86 So.3d 1270 (Fla. 4th DCA 2012) (perjury in sentencing is improper factor)
- Bratcher v. State, 743 So.2d 112 (Fla. 5th DCA 1999) (perjury cannot justify sentencing)
- Hannum v. State, 13 So.3d 132 (Fla. 2d DCA 2009) (cannot rely on defendant’s lack of candor to punish trial conduct)
- Ward v. State, 152 So.3d 679 (Fla. 4th DCA 2014) (sentencing error where judge relied on credibility judgments)
- Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010) (conditioning sentence on credibility concerns due process)
- City of Daytona Beach v. Del Percio, 476 So.2d 197 (Fla. 1985) (due process concerns re reliance on testimony)