       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      ZACHARY CARLTON DIXON,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                               No. 4D18-575

                            [October 24, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No.
99CF003976AO2.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, C.J.

   The defendant appeals from the trial court’s order denying his motion
for review of sentence pursuant to section 921.1402, Florida Statutes
(2016).    The defendant argues that neither the trial court’s oral
pronouncement denying the motion, nor the trial court’s written order
denying the motion, indicates that the court considered the factors
outlined under section 921.1402. Instead, the defendant argues, the trial
court’s written order appears to indicate that the court merely relied on its
evaluation of the factors outlined under section 921.1401, Florida Statutes
(2016), when the court resentenced the defendant two years earlier.

   In response, the state argues that the defendant failed to preserve this
argument by not having brought this argument to the trial court’s
attention after the trial court’s oral pronouncement and written order. The
state also argues that, if the defendant is left to pursue a fundamental
error argument, then no fundamental error exists because the record
indicates that the court considered the section 921.1402 factors in
denying the motion.
   We agree with the state’s two arguments. We will first summarize the
procedural history, and then address the state’s arguments in turn.

                           Procedural History

   In 2016, the defendant, who as a juvenile had been convicted of first-
degree murder and sentenced to life in prison without parole in 2003, filed
a motion for resentencing pursuant to Horsley v. State, 160 So. 3d 393
(Fla. 2015), and section 921.1401, Florida Statutes (2015). Section
921.1401 states, in pertinent part:

      (2) In determining whether life imprisonment or a term of
      years equal to life imprisonment is an appropriate sentence,
      the court shall consider factors relevant to the offense and the
      defendant’s youth and attendant circumstances, including,
      but not limited to:
      (a) The nature and circumstances of the offense committed
      by the defendant.
      (b) The effect of the crime on the victim’s family and on the
      community.
      (c) The defendant’s age, maturity, intellectual capacity, and
      mental and emotional health at the time of the offense.
      (d) The defendant’s background, including his or her family,
      home, and community environment.
      (e) The effect, if any, of immaturity, impetuosity, or failure to
      appreciate risks and consequences on the defendant’s
      participation in the offense.
      (f) The extent of the defendant’s participation in the offense.
      (g) The effect, if any, of familial pressure or peer pressure on
      the defendant’s actions.
      (h) The nature and extent of the defendant’s prior criminal
      history.
      (i) The effect, if any, of characteristics attributable to the
      defendant’s youth on the defendant's judgment.
      (j) The possibility of rehabilitating the defendant.

   Pursuant to section 921.1401, the trial court held an evidentiary
hearing and entered a written order resentencing the defendant to twenty-
eight years in prison. In the written order, the trial court recited section
921.1401 as quoted above, and then expressly addressed each factor one-
by-one as applied to the evidence presented.



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   Two years later, the defendant filed a “Motion for Review of Sentence
Pursuant to Section 921.1402, Florida Statutes.” Section 921.1402 states,
in pertinent part:

      (6) Upon receiving an application from an eligible juvenile
      offender, the court of original sentencing jurisdiction shall
      hold a sentence review hearing to determine whether the
      juvenile offender’s sentence should be modified.           When
      determining if it is appropriate to modify the juvenile
      offender’s sentence, the court shall consider any factor it
      deems appropriate, including all of the following:
      (a) Whether the juvenile offender demonstrates maturity and
      rehabilitation.
      (b) Whether the juvenile offender remains at the same level of
      risk to society as he or she did at the time of the initial
      sentencing.
      (c) The opinion of the victim or the victim’s next of kin. The
      absence of the victim or the victim’s next of kin from the
      sentence review hearing may not be a factor in the
      determination of the court under this section. The court shall
      permit the victim or victim’s next of kin to be heard, in person,
      in writing, or by electronic means. If the victim or the victim’s
      next of kin chooses not to participate in the hearing, the court
      may consider previous statements made by the victim or the
      victim’s next of kin during the trial, initial sentencing phase,
      or subsequent sentencing review hearings.
      (d) Whether the juvenile offender was a relatively minor
      participant in the criminal offense or acted under extreme
      duress or the domination of another person.
      (e) Whether the juvenile offender has shown sincere and
      sustained remorse for the criminal offense.
      (f) Whether the juvenile offender’s age, maturity, and
      psychological development at the time of the offense affected
      his or her behavior.
      (g) Whether the juvenile offender has successfully obtained a
      high school equivalency diploma or completed another
      educational, technical, work, vocational, or self-rehabilitation
      program, if such a program is available.
      (h) Whether the juvenile offender was a victim of sexual,
      physical, or emotional abuse before he or she committed the
      offense.
      (i) The results of any mental health assessment, risk
      assessment, or evaluation of the juvenile offender as to
      rehabilitation.

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   Upon receiving the motion, the trial court, consistent with section
921.1402, set a sentence review hearing. At the hearing, the defendant
presented evidence relevant to nearly all of the section 921.1402 factors.
During closing argument, defense counsel stated:

         A lot of these [921.1402] factors [were] already considered
      in the re-sentencing and the Court has already found these
      factors and considered them. However, there are . . . in terms
      of maturity, the victim input . . . this part is different because
      it considers risk assessment . . . what he has done to
      rehabilitate, and has to make a determination if, in fact, he
      has been rehabilitated.

  The trial court orally pronounced it was denying the motion for review.
The court’s oral pronouncement did not expressly mention section
921.1402 or its factors by number or name. Instead, the court stated:

          [Y]ou’ve done all of these classes and you obviously are
      trying to better yourself . . . . I do agree that you do have a low
      risk for reoffending. And I think you were called a role model
      in prison, and . . . you have made some significant positive
      strides. . . . But at this point, I do not believe a modification
      of your sentence is appropriate. . . . I don’t want you to
      misconstrue the fact that I don’t address and recognize the
      positive steps that you’ve taken. But I just do not believe a
      modification is appropriate right now.

   The court then entered a written order denying the motion for review.
See § 921.1402(7), Fla. Stat. (2015) (“If the court determines that the
juvenile offender has not demonstrated rehabilitation or is not fit to reenter
society, the court shall issue a written order stating the reasons why the
sentence is not being modified.”) (emphasis added). Although the court’s
written order did not expressly mention section 921.1402 or its factors by
number or name, the court entitled its order as an “Order on Motion for
Review of Sentence.” The court’s order then stated, in pertinent part:

         Defendant [] had a resentencing hearing in 2016 pursuant
      to Florida Statutes 921.1401. . . . [T]his Court resentenced the
      Defendant, who was previously sentenced to life without
      parole[,] to 28 years in the department of corrections with
      credit for the time he had previously served. In this Court’s
      [resentencing] Order (Attached as Exhibit A) . . . the relevant

                                      4
      resentencing factors delineated under Florida Statutes
      921.1401 were extensively analyzed and examined. Then
      almost 2 . . . years later, the Defendant filed [the instant]
      Motion for Review of Sentence . . . .

         . . . While it is apparent that the Defendant has made
      positive strides while in prison . . . by taking classes and
      learning a trade and is capable of rehabilitation, not much has
      changed in 18 months [since the defendant’s resentencing].
      This Court still does not believe the Defendant has been fully
      rehabilitated . . . nor does [the Court] reasonably believe the
      Defendant is fit to reenter society at this time. This court
      incorporates by reference all the analysis and reasoning in its
      [resentencing] Order.        Therefore, modification of the
      Defendant’s sentence is not appropriate at this time.

   After the trial court’s oral pronouncement, the defendant did not object
or seek to clarify whether the court based its denial on its consideration of
the section 921.1402 factors, or merely relied on its earlier evaluation of
the section 921.1401 factors. Similarly, after the court entered its written
order, the defendant did not file a Florida Rule of Criminal Procedure
3.800(b)(1) or 3.850(a)(1) motion seeking to clarify whether the trial court
based its denial on its consideration of the section 921.1402 factors, or
merely relied on its earlier evaluation of the section 921.1401 factors.

   Instead, the defendant filed this appeal. The defendant argues that
neither the trial court’s oral pronouncement nor the trial court’s written
order indicates that the court considered the section 921.1402 factors.
Instead, the defendant argues, the trial court’s written order, incorporating
the earlier 921.1401 resentencing order, appears to indicate that the court
merely relied on its earlier evaluation of the section 921.1401 factors.

   In response, the state argues that the defendant failed to preserve this
argument by not having brought this argument to the trial court’s
attention after the trial court’s oral pronouncement and written order. The
state also argues that, if the defendant is left to pursue a fundamental
error argument, then no fundamental error exists because the record
indicates that the court considered the section 921.1402 factors in
denying the motion.

                                Our Review

   We agree with the state’s two arguments. We address each in turn.


                                     5
    First, the defendant’s argument was not preserved. After the trial
court’s oral pronouncement, the defendant did not object or seek to clarify
whether the trial court based its denial on its consideration of the section
921.1402 factors, or merely relied on its earlier evaluation of the section
921.1401 factors. Similarly, after the court entered its written order, the
defendant did not file a Florida Rule of Criminal Procedure 3.800(b) motion
seeking to clarify whether the trial court based its denial on its
consideration of the section 921.1402 factors, or merely relied on its earlier
evaluation of the section 921.1401 factors.          Thus, the defendant’s
argument was not preserved. See Fla. R. App. P. 9.140(e) (“A sentencing
error may not be raised on appeal unless the alleged error has first been
brought to the attention of the lower tribunal: (1) at the time of sentencing;
or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).”);
Hobgood v. State, 166 So. 3d 840, 845 (Fla. 4th DCA 2015) (“A defendant
must preserve a sentencing error by objecting at the time of sentencing or
in a motion under Florida Rule of Criminal Procedure 3.800(b).”) (citation
and quotation marks omitted).

    Second, we see no fundamental error. See Hayward v. State, 24 So. 3d
17, 41 (Fla. 2009) (fundamental error is “an error that goes to the
foundation of the case . . . and is equivalent to a denial of due process”)
(citations and internal quotation marks omitted). Nothing in the record
suggests that the trial court was confused or that the court did not
consider the section 921.1402 factors. On the contrary, the court’s oral
pronouncement alluded to some of the section 921.1402 factors:

      [Y]ou’ve done all of these classes and you obviously are trying
      to better yourself . . . . I do agree that you do have a low risk
      for reoffending. And I think you were called a role model in
      prison, and . . . you have made some significant positive
      strides. . . . But at this point, I do not believe a modification
      of your sentence is appropriate. . . . I don’t want you to
      misconstrue the fact that I don’t address and recognize the
      positive steps that you’ve taken. But I just do not believe a
      modification is appropriate right now.

  Similarly, the court’s written order also alluded to some of the section
921.1402 factors:

      While it is apparent that the Defendant has made positive
      strides while in prison . . . by taking classes and learning a
      trade and is capable of rehabilitation, not much has changed
      in 18 months [since the defendant’s resentencing]. This Court
      still does not believe the Defendant has been fully

                                      6
      rehabilitated . . . nor does [the Court] reasonably believe the
      Defendant is fit to reenter society at this time.

   Based on the foregoing, we cannot say that the trial court
fundamentally erred in the manner in which it expressed its denial of the
defendant’s motion for review, much less committed any error at all.

                               Conclusion

   With the benefit of appellate hindsight, we can say that this appeal may
have been avoided if the trial court’s written order denying the defendant’s
motion for review would have recited section 921.1402 as quoted above,
and then expressly addressed each factor one-by-one as applied to the
evidence presented. However, we also recognize that section 921.1402(7)’s
plain language (“[T]he court shall issue a written order stating the reasons
why the sentence is not being modified.”) does not require such detail.
Nevertheless, trial courts may wish to consider addressing each 921.1402
factor as a better practice to ensure the appearance of compliance with the
Legislature’s directives.

   Affirmed.

LEVINE and KLINGENSMITH, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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