Alcantara-Menjivar v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
ALFONSO MIGUEL ALCANTARA-MENJIVAR,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 2D2024-0688
March 4, 2026
Appeal from the Circuit Court for DeSoto County; Don T. Hall, Judge.
Jacob Grollman of Grollman Law, P.A., Bradenton, for Appellant.
James Uthmeier, Attorney General, Tallahassee, and Natalia Reyna
Pimiento, Assistant Attorney General, Tampa, for Appellee.
KHOUZAM, Judge.
Following a jury trial, Alfonso Miguel Alcantara-Menjivar1 timely
appeals his judgment and sentence for fifteen counts of possession of
child pornography and one count of unauthorized possession of a
1 Mr. Alcantara-Menjivar's name is referred to inconsistently
between the record and the appellate filings. Herein we adopt the
nomenclature used in his filings in this court.

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driver's license or identification card. Of the several issues Mr.
Alcantara-Menjivar raises on appeal, we find merit in two.
In particular, as we now explain, we must reverse the sentence and
remand for resentencing because the record suggests the trial court
considered an impermissible factor in imposing the sentence. Further,
as the State concedes, the public defender's fee was improperly imposed.
BACKGROUND
Before trial, in response to questions by defense counsel, the court
indicated that it would accept a plea offer by the State of seventeen years
in prison—the bottom of the guidelines. Mr. Alcantara-Menjivar declined
to enter a plea and instead chose to exercise his right to a jury trial.
In later sentencing Mr. Alcantara-Menjivar after the jury found him
guilty, the trial court stated:
[A]ll right, so what we have is a crime which really,
the—the community out there has considered to be
something like this, of crimes against children. There's
usually, I mean, 100-percent zero tolerance for this type of
behavior. If nobody was looking at it, we probably wouldn't
have this problem as much. And this is a little different than
just pictures.
They're all horrible, but these are a series of videos that
are very graphic videos. And it's somewhat different. I mean,
obviously, we strive very hard not to penalize someone for
going to trial. But these cases are a little bit different. And I
believe that it was explained to you that it's very difficult for
jurors to have to view these materials. And they must do it as
part of their service, but it's very, very difficult for them to
have to sit through something like this, not to mention, what
this does to enhance this horrific industry. This sex
trafficking and child pornography appears to be rampant. It
is not to be tolerated.
(Emphasis added.) Thereafter, the court sentenced him to approximately
forty-eight years in prison for the possession convictions.

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After Mr. Alcantara-Menjivar filed his notice of appeal, he moved to
correct a sentencing error under Florida Rule of Criminal Procedure
3.800(b)(2), raising the issue of improper sentencing factors. The trial
court did not file an order ruling on the motion within sixty days, so the
motion is deemed denied. See Fla. R. Crim. P. 3.800(b)(2)(B).
ANALYSIS
I. Impermissible sentencing factor
"[W]hen a trial court relies on impermissible factors in sentencing a
defendant, the court violates the defendant's due process rights."
Charles v. State, 204 So. 3d 63, 66 (Fla. 4th DCA 2016). One such
settled factor is that "[a]n accused may not be subjected to more severe
punishment for exercising his constitutional right to stand trial." Mitchell
v. State, 521 So. 2d 185, 187 (Fla. 4th DCA 1988).
Whether a trial court has considered an impermissible factor in
sentencing is a question of law subject to de novo review. See Charles,
204 So. 3d at 66 (citing Cromartie v. State, 70 So. 3d 559, 563 (Fla.
2011)). The burden is on the State "to show from the record as a whole
that the trial court did not consider impermissible factors in rendering its
sentence." Nichols v. State, 283 So. 3d 947, 950 (Fla. 2d DCA 2019)
(quoting Love v. State, 235 So. 3d 1037, 1039-40 (Fla. 2d DCA 2018)).
On its face, the court's comment suggests that there is a special
rule for sentencing defendants convicted of possessing videos of child
pornography under which it is permissible to penalize them for exercising
their constitutional right to a jury trial. The rationale appears to be that
a harsher penalty is appropriate because of the difficulty for jurors in
viewing such reprehensible material. But "[d]ue [p]rocess requires that
every element of the crime charged must be proved, to a jury, beyond a
reasonable doubt." Gilson v. State, 795 So. 2d 105, 110 (Fla. 4th DCA

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2001). That necessarily includes the element of identifying the material
as child pornography.
Particularly when considered in tandem with the fact that the
ultimate sentence was nearly three times longer than the sentence the
court said it would accept pretrial as part of a plea agreement, the court's
on-the-record statement suggests that it impermissibly considered Mr.
Alcantara-Menjivar's exercise of his jury trial right in sentencing him.
In response, the State makes little attempt to defend the court's
comment. Rather, it simply says the court was permissibly commenting
on the nature of the crimes and their impact on the judicial process. The
State thus has not carried its burden to show that the court did not
consider the decision to go to trial in imposing the sentence.
Under these circumstances, we are bound to reverse and remand
for resentencing before a different judge. See Lacey v. State, 312 So. 3d
97, 100 (Fla. 4th DCA 2021) ("Because the court considered
impermissible factors in sentencing, which is a violation of due process,
we reverse and remand for resentencing before a different judge.").
II. Public defender's fee
Mr. Alcantara-Menjivar also contends that the trial court erred by
imposing $1,000 in costs for the public defender's fee. The State
concedes that the cost was improperly imposed without notice or an
opportunity to contest it. See § 938.29(5), Fla. Stat. (2024) (requiring
"adequate notice" and the "opportunity to be heard" with respect to the
public defender's fee).
We agree with Mr. Alcantara-Menjivar's argument and the State's
concession. In resentencing Mr. Alcantara-Menjivar on remand, the
court shall comply with the due process requirements of section
938.29(5).

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Judgment affirmed; sentence reversed; remanded with instructions.
VILLANTI and SMITH, JJ., Concur.
__________________________
Opinion subject to revision prior to official publication.