final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. Jennie M.
Cromey of Jason Cromey Law, P.A., Pensacola, for Appellant.
Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant
Attorney General, Tallahassee, for Appellee.
Andrew Barlow pleaded no contest to ten counts of possessing
child pornography, the court sentenced him to fifteen
years' imprisonment and thirty years' sex-offender
probation. On appeal, Barlow contends the trial court
committed fundamental error in imposing this sentence.
is no dispute as to whether the sentence was within statutory
limits. Indeed, convicted of ten second-degree felonies, each
with a fifteen-year maximum, see §
775.082(3)(d), Fla. Stat. (2015), Barlow faced a maximum
total sentence of one hundred fifty years' imprisonment.
But although a sentence within statutory limits "is
generally unassailable on appeal, " there is an
exception when a trial court bases its sentence on
impermissible factors, like unsubstantiated allegations of
other crimes. Martinez v. State, 123 So.3d 701, 703
(Fla. 1st DCA 2013); accord Yisrael v. State, 65
So.3d 1177, 1177 (Fla. 1st DCA 2011) ("Fundamental error
occurs where a trial court considers constitutionally
impermissible factors when imposing a sentence."),
approved sub nom. Norvil v. State, 191 So.3d 406
contends this exception applies here. He argues that the
trial court relied on unrelated, uncharged, and
unsubstantiated claims in determining his sentence. At the
sentencing hearing, a law-enforcement agent testified that
Barlow indicated during an electronic chat that he would like
to have sex with a fourteen-year-old boy. Barlow was not
charged with that conduct; his charges related only to
possessing child pornography-not directly interacting with
children. Nevertheless, there is no indication that the trial
court based its sentence on this uncharged conduct, so the
exception provides no basis to reverse. See Harvard v.
State, 414 So.2d 1032, 1034 (Fla. 1982) ("[T]rial
judges are routinely made aware of information which may not
be properly considered in determining a cause. Our judicial
system is dependent upon the ability of trial judges to
disregard improper information and to adhere to the
requirements of the law in deciding a case or in imposing a
sentence."); Williams v. State, 193 So.3d 1017,
1019 (Fla. 1st DCA 2016) (reversing only after noting
"it is clear from the trial judge's comments at the
sentencing hearing that he accepted as true, and based his
sentencing decision on, the prosecutor's assertions [of
unsubstantiated conduct]"); Yisrael, 65 So.3d
at 1178 (noting that sentencing judge's comments
"strongly indicate that the dismissed and pending
charges were a factor in the court's determination to
impose the maximum allowable sentence").
even if the trial court did consider the uncharged conduct,
it would not have been error. First, evidence that Barlow
expressed interest in sex with a child was not
unsubstantiated. At the sentencing hearing, there was a
dispute about the conversation at issue, and rather than
insist the State produce the actual transcript, Barlow's
counsel accepted as true the agent's description of the
conversation. Second, the evidence directly related to
Barlow's request for a downward departure-a request he
based in part on a report indicating he was at low risk to
reoffend. That report, in turn, reported that Barlow denied
having ever had sexual interest in children. The trial court
found no basis for a downward departure, and to the extent it
considered evidence directly refuting the report (or
Barlow's denial within it), it committed no error.
reject Barlow's argument that the trial court committed
fundamental error by considering child pornography's
general societal harm, rather than the specific harm from
Barlow's crime. Barlow relies on Goldstein v.
State, in which the appellate court found fundamental
error in the trial court's "relying on its
generalized fears of greater future offenses for any
similarly charged [child pornography] defendant and applying
a general policy in sentencing Goldstein contrary to Florida
law." 154 So.3d 469, 476 (Fla. 2d DCA 2015). But in
Barlow's sentencing, although the court noted the
substantial harm child pornography inflicts, it did not
announce any policy applicable to all child-pornography
cases, and it did not articulate any other impermissible
basis for its sentence. Instead, the trial court considered
the individual facts of Barlow's case. It considered
Barlow's mental-health evaluation and letters and
testimony presented on Barlow's behalf. It considered the
fact that Barlow shared child pornography and sought more
images. And it considered the disgusting nature of the
specific images Barlow possessed-images that showed adults
engaging in sexual acts with infants.
Rowe, and ...