ROBERT J. BAEHREN, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence Mirman, Judge; L.T. Case No.
Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for
Baehren appeals sentences imposed for multiple convictions.
Because we agree with his assertion that the trial court
impermissibly considered a pending and unresolved charge in
making its sentencing determination, we reverse and remand
for resentencing before a different judge.
sentences on appeal correspond to charges brought in December
2013. The defendant pled no contest to most of the charges
and was released on his own recognizance until the sentencing
hearing, which was set for three months later in April 2014.
The defendant failed to appear for his sentencing hearing and
the trial judge ordered a bench warrant to issue. In October
2015, the defendant was apprehended on the bench warrant.
Additionally, the state charged the defendant with one count
of felony failure to appear.
sentencing hearing took place in January 2016, at which time
the felony failure to appear charge was still pending. After
some discussion of whether it was permissible, the defendant
gave an unsworn allocution and requested a sentence of one
year in the county jail followed by six months in a
rehabilitative facility. Despite the fact that the state
requested a five-year prison sentence for the sixty-four year
old defendant, the trial court adjudicated the defendant
guilty and imposed a ten-year sentence. In pronouncing
sentence, the trial court explained:
[T]his is what I believe to be the appropriate sentence given
everything involved in your case, including what happened
after you entered the plea with regard to the not showing
up. And limiting it to that. But the primary
justification is your conduct in this case, your age, your
history of convictions, who you are, whether you need to be
removed from society.
appeal, the defendant argues that the trial court erred in
considering his failure to appear since it was a pending
charge for which a conviction had not been obtained. We
a sentence within the permissible statutory range is not
subject to review, but an exception is made "when the
sentence is based on constitutionally impermissible factors,
such as unsubstantiated allegations of wrongdoing."
Williams v. State, 193 So.3d 1017, 1018 (Fla. 1st
DCA 2016). Whether a trial court violates a defendant's
due process rights by considering impermissible factors in
sentencing is a question of law subject to de novo review.
Norvil v. State, 191 So.3d 406, 408 (Fla. 2016).
analysis of this issue is straightforward. In
Norvil, the Florida Supreme Court adopted a
"bright line rule" that "a trial court may not
consider a subsequent arrest without conviction during
sentencing for the primary offense." Id. at
410. "The State has the burden 'to show that the
trial court did not rely on the pending charge resulting from
the subsequent arrest.'" Fernandez v.
State, 212 So.3d 494, 497 (Fla. 2d DCA 2017) (quoting
id. at 409).
the defendant's failure to appear was charged as a new
substantive crime in a separate case which was still pending
at the time of his sentencing, the trial court erred by
factoring in the unresolved charge.
state asserts that "[f]orcing a trial court to ignore a
fact which occurred directly before it such as a
defendant's failure to appear would force a trial judge
to ignore the reality of the defendant before the court for
sentencing." As compelling as the state's argument
may be, we are bound by the bright line rule announced in
Norvil. Consequently, we reverse the defendant's
sentences and we remand for resentencing before a different
judge. See Guerra v. State, 212 So.3d 541, ...