Background
On June 15, 2019, Bidier Colas Costa struck Alexei Gonzalez with a machete and drove away in a stolen vehicle. Costa crashed the car, sustaining serious injuries including broken legs and hip/back injuries that left him dependent on a walker. He was arrested at the crash scene and charged with attempted second-degree murder, grand theft of a vehicle, and aggravated assault with a deadly weapon.
A jury found Costa guilty of attempted second-degree murder and grand theft of a vehicle, but acquitted him of aggravated assault with a deadly weapon. At sentencing, the trial court found Costa qualified as both a Habitual Violent Offender and Prison Release Re-offender, imposing a 60-year split sentence (45 years imprisonment plus 15 years probation) for the murder attempt and 5 years for vehicle theft.
Costa appealed on three grounds: that the trial court violated his due process rights by considering a “no actioned” (dismissed) battery charge during sentencing; that there was a scrivener’s error in the probation order; and that the court failed to enter a written judgment of acquittal on the aggravated assault count.
The Court’s Holding
The Third District reversed and remanded for resentencing before a different judge. Applying the bright-line rule from Florida Supreme Court precedent in Norvil v. State, the court held that the trial court committed a per se due process violation by considering the “no actioned” battery charge—which was not even in the presentencing report—when sentencing Costa. The court noted that the trial judge explicitly stated on the record that he was considering this dismissed charge, citing Costa’s use of his walker to allegedly attack someone in jail as evidence of violent propensity. This violated the constitutional prohibition against considering arrests without convictions during sentencing.
The court further relied on its own recent decision in Ramirez v. State, which applied identical reasoning to reject consideration of a nolle prossed (dismissed) charge at sentencing. Because the impermissible factor may have influenced the sentence, the entire sentence must be vacated and reimposed by a different judge. The court also agreed with the State that two additional errors required correction: the probation order incorrectly indicated Costa entered a guilty plea when he was actually found guilty by jury verdict, and the trial court failed to file a written judgment of acquittal on the aggravated assault count as required by the Florida Rules of Criminal Procedure.
Key Takeaways
- Trial courts may not consider arrests without convictions—including dismissed or “no actioned” charges—when sentencing on the primary offense, even if the allegations appear in the record.
- Consideration of such charges constitutes a bright-line due process violation requiring vacation of the sentence and resentencing before a different judge, regardless of uncertainty whether the sentence would have been the same.
- Trial courts must enter written judgments of acquittal consistent with jury verdicts and must correct clerical errors in sentencing documents to reflect actual verdicts rather than erroneous pleas or charges.
Why It Matters
This decision reinforces strict constitutional protections in Florida sentencing practice, preventing judges from using dismissed or uncharged conduct to enhance sentences even when such conduct appears relevant to demonstrating criminal propensity. The ruling aligns the Third District with the bright-line rule established by the Florida Supreme Court, ensuring uniform application across appellate districts and protecting defendants’ due process rights at the critical sentencing stage.
The case also clarifies procedural requirements: trial courts must scrupulously document jury verdicts in writing and cannot rely on defensive arguments about physical disability to justify enhanced sentences when constitutional violations have occurred. For prosecutors and defendants alike, the decision reinforces that sentencing proceedings must focus exclusively on proper sentencing factors and that remand before a different judge is mandatory when improper factors have demonstrably influenced the initial sentence.