OLIVO v. STATE (2026)

Appellant Erik Olivo, the defendant below, appeals the sentence imposed by the trial court after the jury convicted Olivo of battery on a sixty-five-year-old person. Olivo contends that when the trial court denied Olivo's motion for a downward departure sentence and imposed a guidelines sentence, the court violated Olivo's due process rights by relying, in part, on prior, dismissed criminal charges against Olivo. Because the record reflects that the trial court might have relied on Olivo's dismissed criminal charges at sentencing and the State failed to meet its burden of showing that the trial court did not rely on these impermissible considerations when it imposed Olivo's sentence, we reverse Olivo's sentence and remand for resentencing before a different judge. See Ramirez v. State, 420 So. 3d 570, 577 (Fla. 3d DCA 2025).¹

I. Relevant Background

After being convicted, but prior to his sentencing, Olivo filed a motion for a downward departure sentence that requested Olivo be sentenced to a residential mental health program rather than to prison.² At the sentencing hearing, the trial court heard testimony from Olivo's doctor, who testified that Olivo suffered from bipolar disorder unrelated to his drug addiction and that Olivo was amenable to treatment. During its cross examination of the doctor, the State, over Olivo's objections, was permitted to ask about Olivo's history of arrests – some of which resulted in convictions, and some of which resulted in criminal charges that were dismissed. Olivo's arrests that resulted in dismissed criminal charges included prior arrests for attempted arson, criminal mischief (at a McDonald's restaurant), and robbery.

In objecting to the State's cross-examination of Olivo's doctor about Olivo's dismissed criminal charges, defense counsel stated:

Now the State brought up other arrests. It is important that this court recognizes that those arrests and those facts, the court has not seen any evidence of that. There's no evidence of the facts of those arrests that did not result in convictions and it does violate someone's due process rights for the court to consider that in determining a sentence.

For its part, the State doubled down on Olivo's prior arrest history, observing that Olivo had undergone treatment for his bipolar disorder in 2019, following which Olivo had “15 arrests and seven convictions including this one.”³

In denying Olivo's downward departure motion, the trial court stated:

The Defense has been arguing that you are amendable [sic] to treatment, that you want help, that you want to better yourself and that may be true. But you were given the opportunity for treatment in 2019 but since you – and this is even after you had graduated or succeeded or completed or however you want to call it – your treatment, you had been arrested several times. Arrested for strong arm robbery, snatching a phone, hitting the victim on the head, criminal mischief at a McDonald's and arson arrest ․

․ The courts [sic] believe that the defendant does need help but the help that is necessary will be given to him after he completes a prison period – a prison sentence.

(Emphasis added).

The trial court sentenced Olivo to a guidelines sentence of eighteen-months in prison with credit for time served, followed by two years of community control with special conditions that Olivo participate in an inpatient treatment program. Olivo appeals only his sentence. We have expedited our appellate review.

II. Analysis 4

While a trial court, when sentencing a defendant, may consider the circumstances surrounding the defendant's primary offense and the defendant's prior criminal record, the court's consideration of dismissed criminal charges generally violates a defendant's due process rights. See Ramirez, 420 So. 3d at 576.⁵ Our recent opinion in Mairs v. State, 51 Fla. L. Weekly D1226, ––– So.3d ––––, 2026 WL 1740193 (Fla. 3d DCA June 17, 2026), sets forth the applicable standard when, as here, a criminal defendant appeals a sentence arguing that the trial court improperly considered dismissed criminal charges at sentencing.

Specifically, “[w]hen dismissed criminal charges are presented to the trial court at sentencing, and the record reflects that the trial court may have relied upon such considerations when sentencing the defendant, ‘[t]he State has the burden to show from the record as a whole that the trial judge did not rely upon impermissible considerations in passing sentence upon the defendant[.]’ ” Id. at *2 (quoting Mirutil v. State, 30 So. 3d 588, 590-91 (Fla. 3d DCA 2010) (emphasis added)). And “[t]o determine whether the sentence imposed by the trial court was influenced by the improper factor – i.e., the dismissed criminal charges – we must focus our inquiry on the actual statements made by the trial court at sentencing and analyze whether those statements ‘reflect that the trial court improperly considered dismissed charges in determining the appropriate sentence.’ ” Id. (quoting Ramirez, 420 So. 3d at 576).

In Mairs, we affirmed because the State met its burden of showing that Mairs's dismissed criminal charges played no role in the trial court's sentencing determination. Id. Here, though, the totality of the record plainly reflects that, in sentencing Olivo, the trial court might have relied upon Olivo's dismissed criminal charges. Thus, the State has the burden to establish that, notwithstanding any statements by the trial court, the trial court did not rely on those dismissed charges. Id. Despite its best efforts, the State failed to meet its burden.

Indeed, in denying Olivo's downward departure motion and just prior to sentencing Olivo, the trial court expressly referenced three prior arrests – armed robbery, arson, and criminal mischief (at a McDonald's) – that resulted in dismissed criminal charges. The State offers nothing in the record that suggests the trial court did not rely on these dismissed charges when it imposed Olivo's sentence. Thus, we are compelled to reverse Olivo's sentence, and we remand for resentencing before a different judge. See Ramirez, 420 So. 3d at 577 (“Here, the record reflects the trial court improperly considered Ramirez's dismissed charges when sentencing him. The trial court referred to the details of the dismissed charges, which were not in the presentencing investigation report, to show that the offenses Ramirez was convicted of were not a ‘one-off mistake.’ Therefore we reverse Ramirez's sentence and remanded [sic] for resentencing before a different judge.”); see also Kimbrough v. State, 300 So. 3d 1234, 1235 (Fla. 3d DCA 2020) (“This transcript raises a reasonable question as to whether the trial court relied on the acquitted charges in pronouncing sentence. Where it remains unclear whether the trial court would have imposed the same sentence absent consideration of an impermissible factor, we must vacate appellant's sentence and remand for resentencing before a different judge.”); Mirutil, 30 So. 3d at 591 (“ ‘Based on the record and the trial court's candid remarks it cannot be said that the trial court did not take into consideration impermissible factors in sentencing’ Mirutil. Therefore, we find that the State has not carried its burden of proving that the trial court did not rely on the later cases in sentencing Mirutil for the previous cases. Accordingly, we reverse and remand for resentencing by a different judge[.]” (quoting Cook v. State, 647 So. 2d 1066, 1067 (Fla. 3d DCA 1994))).

Reversed and remanded with instructions.

FOOTNOTES

1.   Olivo separately contends that the trial court penalized him for exercising his right to a jury trial. Because the trial court's reliance on dismissed charges independently requires reversal and resentencing before a different judge, we do not reach, and we express no opinion regarding, Olivo's separate argument.

2.   Olivo's motion sought relief under section 921.0026(2)(d) of the Florida Statutes (2026), which permits the trial court to impose a downward departure sentence where “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.”

3.   The number of Olivo's prior arrests and convictions is unclear. There is no presentence investigation report in the record. The criminal punishment scoresheet submitted by the State lists, in the “Prior Record” section, four prior convictions.

5.   There is authority that a trial court, at sentencing, may consider a defendant's prior record of arrests occurring prior to the time of the primary offense, where those arrests appear in a presentence investigation report. See Norvil v. State, 191 So. 3d 406, 409 (Fla. 2016). Here, though, no presentence investigation report was ordered.

SCALES, C.J.