final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No.
H. Lida and Joshua H. Lida of Carl H. Lida, P.A., Plantation,
Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach,
challenges his sentences imposed after his open plea to the
court, contending that the trial court relied on factors
unsupported by the evidence in the case. The trial judge
attributed to the defendant crimes for which he had not been
arrested or charged, nor for which there was any evidence of
his involvement. Consideration of unproven criminal activity
violates due process. We therefore reverse and remand for a
new sentencing hearing.
Strong entered an open nolo contendere plea to Count I, third
degree grand theft; Count II, burglary of a dwelling; Count
III, possession of burglary tools; Count IV, burglary of a
dwelling. These charges arose out of two burglaries on
Jupiter Island, Florida, on August 4, 2014. In each of the
burglaries, entry was gained by smashing a rear glass door,
and jewelry was taken. Appellant was definitively tied to
only one burglary through DNA evidence on a pillowcase. When
officers identified a suspicious vehicle in the area, an
officer was able to stop it on August 7, 2014. Appellant and
two co-defendants were in the vehicle.
co-defendant, Greg Taylor, confessed to the authorities both
his involvement in the Jupiter Island burglaries and his
participation in two other similar burglaries in western
Martin County. He told detectives that appellant was not
involved in the western burglaries.
pled guilty to the charges. Prior to sentencing, the State
submitted a memorandum to the court outlining the four
burglaries. In it, the State claimed that all of the
burglaries qualified as "pillowcase" burglaries.
This is a term used by prosecutors to describe a rash of
burglaries committed in Martin County by residents of Broward
County. The State's entire presentation at sentencing
consisted of evidence regarding the pillowcase burglaries. A
detective testified that the burglars would use a pillowcase
from the burgled home to carry out jewelry and other items.
This detective went to Broward County and found the rental
agency where "they" rented vehicles, without
identifying to whom she was referring. After the arrest of
Taylor and appellant, the burglaries stopped. The detective
did not testify as to any specific information tying
appellant to any of these crimes.
sought a downward departure from the lowest permissible
sentence of 45.75 months in prison. He was nineteen at the
time of the burglaries and had no criminal record. His
mother, sisters, and cousin testified that he had grown up in
a single-parent family and was a good person. They testified
that committing these burglaries was entirely inconsistent
with his character. His mother testified that he had gotten
involved with the wrong set of friends.
pronouncing sentence, the court first noted that
"sending a message to the community" was not a
proper consideration. After listening to the argument of
counsel and the request for a downward departure, the court
said, "[E]ven if mitigating circumstances may exist,
they do not warrant departure because this is a case that
cries out for punishment. It's a case that terrorized
this community, instilling fear and insecurity in its
residents." The court then sentenced appellant to a
total of twenty-five years for the charges from the two
burglaries,  sentencing above even the state's
recommendation of twenty years. Later, co-defendant Taylor,
who was involved with all four burglaries mentioned in the
state's sentencing memorandum, was sentenced to 10.2
years in prison, largely based upon his cooperation with the
sentencing, appellant's counsel filed a timely motion to
vacate the plea based on ineffective assistance of counsel.
The trial court denied the motion. Appellant now appeals his
sentence, contending that the trial court relied on
unsubstantiated matters in passing sentence.
a sentence is "generally unassailable" when it is
within the statutory limits, a court violates due process by
considering unsubstantiated matters. See Williams v.
State, 193 So.3d 1017, 1018 (Fla. 1st DCA 2016). Our
court has held "that unsubstantiated allegations of
misconduct may not be considered by a trial judge at a
criminal sentencing hearing and to do so violates
fundamental due process." Reese v.
State, 639 So.2d 1067, 1068 (Fla. 4th DCA 1994)
(emphasis added). In Hillary v. State, 232 So.3d 3,
4 (Fla. 4th DCA 2017) (quoting Fernandez v. State,
212 So.3d 494, 496 (Fla. 2d DCA 2017)), we also held,
"'[A] trial court's consideration of a
constitutionally impermissible sentencing factor is a
fundamental error in the sentencing process' which is
reviewable for the first time on direct appeal."
in Norvil v. State, 191 So.3d 406 (Fla. 2016), our
supreme court held that a court may not consider matters
outside the provisions of the Criminal Punishment Code in
sentencing a defendant. In Norvil, the court
considered an arrest subsequent to the charged crime.
Id. at 407. The court explained that a subsequent
arrest was not listed as a factor for consideration under the
CPC or in the presentence investigation report, and thus,
could not be considered in sentencing. Id. at
trial court violated constitutional due process by
considering unsubstantiated allegations of misconduct in this
case. The State presented substantial evidence regarding
other "pillowcase" burglaries without ever tying
them in any way to appellant, who was charged with only two
burglaries on one day. There was no evidence that appellant
had any participation with any other burglaries.
Nevertheless, the trial court found that this case
"terrorized a community" without any evidence to
support that these two burglaries, committed on the same day,
had that effect on the community. Instead, it is apparent
that the court connected appellant with all the pillowcase
burglaries and sentenced him in consideration of the effect
that they had on the community.
these other burglaries, for which there was no evidence of
appellant's involvement, are not within the factors which
a court may consider under the CPC. Those factors which the
court may consider under Norvil are limited to the
defendant's involvement in the current charges or the
defendant's prior arrests or convictions, not the charges
against other persons with whom the defendant may or may not
have been associated. "[U]nsubstantiated allegations of
misconduct or speculation that the defendant probably
committed other crimes may not be relied upon by a trial
court in imposing sentence." Nusspickel v.
State, 966 So.2d 441, 445 (Fla. 2d DCA 2007).
the State's burden to show that the trial court did not
rely on impermissible factors in sentencing. See
Norvil, 191 So.3d at 409. In Mosley v. State,
198 So.3d 58, 60 (Fla. 2d DCA 2015) (alteration added), the
court further explained what the State must show:
The State bears the burden to show from the record as a whole
that the trial court did not consider impermissible factors
in rendering its sentence. [citation omitted] We must examine
the record to determine whether it "may reasonably be
read to suggest" that a defendant's sentence was the
result, at least in part, of the consideration of
impermissible factors. See Moorer v. State, 926
So.2d 475, 477 (Fla. 1st DCA 2006).
State has failed to carry its burden. When the record as a
whole is considered, there is more than enough to reasonably
suggest that the court relied ...