ALEXIS J. CARTAGENA, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Robert E. Belanger, Judge; L.T. Case No.
Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Senior Assistant Attorney General, West Palm Beach,
case presents two issues for our review. First, we are asked
to determine whether evidence of acts committed by appellant
shortly after the charged crime is considered inextricably
intertwined with the offense so as to be admissible at trial.
Second, we must decide whether the trial court properly
applied a sentencing multiplier based on facts not submitted
to the jury. As to the first issue, we affirm. As to the
second, we reverse and remand for resentencing.
was charged with and found guilty of battery by
strangulation. The battery occurred during a domestic dispute
between appellant and his daughter. During an argument with
appellant, the daughter attempted to retreat to her bedroom
with her infant child. Appellant followed the daughter,
pushing her onto her bed. At this point, the daughter's
grandmother took the infant child, leaving appellant and his
daughter alone in the room. The fight continued, with
appellant eventually holding his daughter by the throat for
about thirty seconds. Once appellant released the daughter,
she left the house.
calling the police, the daughter returned to her room, where
she found several of her belongings broken on the floor. At
trial, the state introduced the daughter's deposition
testimony that appellant broke "everything" in her
room-apparently in anger, according to the state- after the
battery by strangulation occurred. Over appellant's
objection that the testimony constituted collateral matter
evidence, the trial court admitted the testimony as evidence
of an inextricably intertwined act.
review rulings on the admissibility of evidence for abuse of
discretion. Gaines v. State, 155 So.3d 1264, 1271
(Fla. 4th DCA 2015). Evidence is admissible as inextricably
intertwined if it is necessary to adequately describe the
charged crime, provide an intelligent account of the charged
crime, establish the context out of which the charged crime
arose, or adequately describe events leading up to the
charged crime. Ward v. State, 59 So.3d 1220, 1222
(Fla. 4th DCA 2011).
the daughter's testimony regarding appellant's
destruction of her belongings tended to show appellant's
state of mind immediately following the battery. Because it
was necessary to describe and contextualize the crime, the
testimony was admissible. See id.
the trial court's improper use of a sentencing multiplier
mandates reversal and resentencing. Appellant's initial
guidelines score qualified him for a non-prison sentence. The
trial court then applied a 1.5 multiplier for "domestic
violence in the presence of a related child, "
increasing the mandatory minimum sentence to preclude any
non-prison sanction. The court sentenced appellant to
thirty-six months in prison.
threshold matter, we note that appellant preserved the
sentencing error by filing a motion to correct sentencing.
See Allen v. State, 172 So.3d 523, 524-25 (Fla. 4th
DCA 2015) ("[I]t is well-settled that a defendant may
raise unpreserved sentencing errors under a rule 3.800(b)(2)
motion."). Whether a trial court properly assessed
points on a sentencing scoresheet is subject to de novo
review. Blair v. State, 201 So.3d 800, 802 (Fla. 4th
order to afford a criminal defendant due process, "any
fact that increases the mandatory minimum [sentence], "
with the exception of a prior conviction, "is an
'element' that must be submitted to the jury."
Alleyne v. United States, 133 S.Ct. 2151, 2155
(2013). Failure to submit such an element to the jury is
harmless, however, "if the record demonstrates beyond a
reasonable doubt that a rational jury would have found the
fact required to impose the mandatory minimum term."
Britten v. State, 181 So.3d 1215, 1218 (Fla. 1st DCA
the court applied a sentencing multiplier for domestic
violence in the presence of a related child. However, the
jury was never presented with an interrogatory regarding the
child's presence, nor did its verdict reflect any finding
that the battery by strangulation was committed while the
child was in the room. Because the child's presence was
an "element" that increased the mandatory minimum
sentence and was not submitted to the jury, the trial court
committed an Alleyne error. Alleyne, 133
S.Ct. at 2155. As the testimony at trial suggested that the
daughter's son may or may not have been present during
the battery by strangulation, we cannot say ...