        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        ALEXIS J. CARTAGENA,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D16-2200

                           [January 10, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert E. Belanger, Judge; L.T. Case No.
562014CF003878A.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Senior Assistant Attorney General, West Palm Beach, for appellee.

LEVINE, J.

   This 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.

   Appellant 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.
   After 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.

   We 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).

   Here, 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.

   However, 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.

   As a 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 DCA 2016).

    In 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 2015).

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    Here, 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 that that the jury would have found the child present at the
time of the battery beyond a reasonable doubt, so the error is not harmless.
See Britten, 181 So. 3d at 1218.

   Because the court applied a domestic violence multiplier without the
jury having found that a related child was present during the battery,
reversal is required. See Mathew v. State, 837 So. 2d 1167, 1171 (Fla. 4th
DCA 2003). Consistent with the requirements of Alleyne and our opinion
in Mathew, we reverse and remand for the trial court to resentence
appellant without the multiplier for domestic violence in the presence of a
related child.

   Affirmed in part, reversed in part, and remanded for resentencing.

GERBER, C.J., and CIKLIN J., concur.

                           *           *       *

   Not final until disposition of timely filed motion for rehearing.




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