Korey Der'renard Gunn v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D17-5062 _____________________________

KOREY DER'RENARD GUNN,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Alachua County. James M. Colaw, Judge.

July 16, 2019

PER CURIAM.

Mr. Gunn appeals his conviction for robbery, and challenges his sentence in two respects. We reject his new-trial argument and affirm his conviction, but reverse his sentence and remand for resentencing before a different judge.

In an order rejecting Mr. Gunn’s motion to correct sentencing error, the trial judge wrote the following:

Given the fact that Defendant committed the robbery in this case while on probation, it was always the intent of this Court that Defendant serve his prison sentence in this case consecutively to his VOP prison sentences. This Court’s intent was known to the parties,

including Defendant personally, prior to the trial in this case. Because this Court imposed the sentence that it intended to impose, Defendant’s claim is without merit.

Sentencing judges must be impartial and not predisposed to a particular sentencing outcome. Cromartie v. State, 70 So. 3d 559, 564 (Fla. 2011) (invalidating sentence entered under a judge’s stated policy of always rounding sentences up to the next whole year). Similarly in this case, the trial judge erred by having a predetermined, pretrial intention to sentence Mr. Gunn consecutively. We therefore vacate Mr. Gunn’s sentence and remand for resentencing before a different judge.

REVERSED.

ROWE, BILBREY, and KELSEY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender; and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General; and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.