Yisrael v. State, 2011 Fla. App. LEXIS 11455

Yisrael was sentenced to 30 years for familial or custodial sexual battery.
The trial court made comments during sentencing suggesting impermissible considerations of charges not tried.
The court questioned Yisrael about two other charges (one pending, one dismissed) related to sexual battery.
The court stated there were “other victims apparently that don’t want to testify” immediately before imposing sentence.
The court imposed the maximum sentence with added cost language, indicating impermissible factors influenced the outcome.
This appeal challenges the sentencing process as fundamental error, not an error in the sentencing order, seeking reversal and remand for resentencing before a different judge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentencing process contained fundamental error	Yisrael	State	Yes, fundamental error from impermissible factors and due-process denial
Whether the remarks about other charges tainted the sentence	Yisrael	State	Yes, remarks indicated impermissible consideration of pending/dismissed charges
Whether a remand to a different judge is required	Yisrael	State	Yes, reversed and remanded for resentencing before a different judge
Whether rule 3.800(b) applies to this appeal	N/A	N/A	Rule 3.800(b) does not apply to fundamental error in sentencing process

Nawaz v. State, 28 So.3d 122 (Fla. 1st DCA 2010) (fundamental error when court relied on impermissible factors)
Jackson v. State, 117839 So.3d 427 (Fla. 1st DCA 2010) (fundamental error when court punished for lack of remorse)
Gray v. State, 964 So.2d 884 (Fla. 2d DCA 2007) (improper consideration of pending charges during sentencing)
Seays v. State, 789 So.2d 1209 (Fla. 4th DCA 2001) (improper consideration of pending charge during sentencing)
State v. Potts, 526 So.2d 63 (Fla. 1988) (state may not penalize for status of indictment or accused)