A Florida appellate court has ordered a new sentencing for Percy Edgardo Torres, 44, of Jacksonville in light of a tongue-lashing that he received from Judge Russell Healey who used his sentencing to lecture him on his violation of Catholic principles.
Healey imposed a 30-year maximum sentence after the instruction on good Catholic values on monogamy — a rather curious sticking point for a man convicted of sexual battery. Torres appears to have a few more fundamental moral issues than simply dancing and cavorting with women other than his wife. Yet, that seemed the most pressing thing on the mind of Healey in this exchange:
THE COURT: You were married, weren’t you?
TORRES: Yeah. I was married, but my wife was in my country.
THE COURT: I know that. Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people—that’s not the way anybody with morals should do anything.
TORRES: We was going out like friends. Like go out.
THE COURT: … you’re the one that said you had sex with her before this night.
TORRES: Yeah. Before this night. Yeah. We have sex.
THE COURT: But you’re married.
TORRES: Yeah. I was married.
THE COURT: That wasn’t right, was it?
TORRES: I know. Yes. It is my mistake.
[toward the end of the hearing the Court added] “You should not have been dancing together and by your own testimony you should not have had prior sexual encounters with her under any set of circumstances once you are married,” he said.
The appellate court noted that normally a sentence, even a maximum sentence, is not reviewed if within the statutory range but that an exception exists for consideration of “constitutionally impermissible factors.” The court also noted that “The minimum guidelines sentence was 9 years and 4 months imprisonment. The State did not request a specific number of years, but instead asked the trial court not to downwardly depart.”
For the court, Judge Wolf stressed:
No one should be punished, or conversely shown leniency, merely because he or she may be a member of a particular religion. Moreover, as we stated in Nawaz, “for justice to be done, it must also appear to be done.” 28 So. 3d at 125. Because the court’s comments could reasonably be construed as basing the sentence, at least in part, on religion, and because we cannot say that the sentence would have been the same without the court’s impermissible consideration of religion, we vacate appellant’s sentence and remand for resentencing before a different judge.
Notably, Judge Makar concurred to note that religious references are not barred from such sentencing hearings:
Thus, it appears that religious references by trial judges in the sentencing context—though potentially risky—are not per se impermissible; they become problematic, however, if they are used—or reasonably appear to be used—as the basis for the sentence itself. See, e.g., Nawaz, 28 So. 3d at 125. The “Constitution, of course, does not require a person to surrender his or her religious beliefs upon the assumption of judicial office,” Bakker, 925 F.2d at 741; religious references are made with caution flags aloft.
What do you think? Should a judge ever be able to discuss his or her religious beliefs as part of a sentencing with or without “caution flags aloft”?
Healy is a former prosecutor and was appointed by Jeb Bush. He is a graduated of University of Florida law school and is a graduate of Jesuit High School. Notably, his private practice focused on family law and marital cases — an emphasis that appears to have continued as a judge.
Source: ABA Journal