         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D16-5652
                 _____________________________

MICHAEL RYAN BAUGH,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Mark Borello, Judge.

                         August 24, 2018


PER CURIAM.

     Following a jury trial, Michael Baugh was convicted of
burglary of a dwelling, a second-degree felony. The court sentenced
him to twenty years as a habitual felony offender (“HFO”) with a
fifteen-year mandatory minimum sentence as a prison releasee
reoffender (“PRR”). At issue in this appeal is the trial court’s
decision to sentence Baugh to twenty years in prison as an HFO.

     At the outset of the sentencing hearing, the State informed
the court that it intended to proceed with its previously-filed
notices to classify Baugh as both a PRR and an HFO under sections
775.082(9) and 775.084(1)(a), Florida Statutes (2015). Baugh
stipulated to the evidence introduced by the State in support of
these classifications, and the court found that he met the criteria
to be sentenced accordingly.

    The defense called Baugh’s father, sister, and grandmother to
provide mitigating testimony. These character witnesses described
Baugh as a good person who made bad choices due to a substance
abuse problem for which he needed help. The mitigation evidence
concluded with Baugh’s testimony expressing remorse and
thanking his family for standing by him.

     The prosecutor noted for the record that the victim had
indicated she wanted to be present for sentencing, but the
prosecutor was unable to get in touch with her about the hearing
date, despite leaving voice messages. When asked by the court
whether the State was comfortable that it had satisfied its
constitutional obligation to notify the victim of the sentencing
proceeding, the prosecutor answered affirmatively.

     Defense counsel requested that Baugh receive only the
mandatory PRR sentence of fifteen years. The State then withdrew
its notice of HFO classification and requested the same fifteen-
year sentence. After an unrecorded bench conference with counsel,
the court continued the sentencing hearing to give the victim an
opportunity to appear. Neither party objected to the continuance.

     At the continuation of the sentencing hearing, the prosecutor
informed the court that she was able to reach the victim, but the
victim was unable to attend the hearing because she could not miss
any more work. Without defense objection, the prosecutor read an
email from the victim explaining how the crime had impacted the
victim’s life. The email stated that when the victim discovered her
home had been broken into, she was “not only afraid for her life
but for [her] children as well.” She was terrified by the knowledge
of an unwelcome stranger entering her home and felt as though
she had been “robbed of her security.” She had to move to a
different property with her mother because she no longer felt safe
in her home. She requested that the judge impose the maximum
sentence.

    The State reasserted its intent to seek HFO sentencing. The
defense again urged the court to impose only the fifteen-year
mandatory minimum, emphasizing that Baugh had accepted
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responsibility for his actions. The court proceeded to sentence
Baugh to twenty years in prison as an HFO, with a fifteen-year
mandatory minimum sentence as a PRR.

     Baugh raises two issues in this appeal. In the first issue, he
argues the HFO portion of his sentence must be reversed because
the court abandoned neutrality by sua sponte continuing the
sentencing hearing after the State withdrew its notice of HFO
classification and requested the mandatory fifteen-year PRR term.
He contends the court, which lacked any discretion in sentencing
at that point, could not maintain neutrality while prompting the
State to locate the victim.

     Because Baugh did not object to the continuance of the
sentencing hearing, we review this issue for fundamental error. §
924.051(3), Fla. Stat. (2015); Sparks v. State, 740 So. 2d 33, 35 (Fla.
1st DCA 1999) (“Fundamental error has been defined as error that
goes to the essence of a fair and impartial trial, error so
fundamentally unfair as to amount to a denial of due process.”).

     Fundamental error can occur when a trial court abandons
neutrality. See Smith v. State, 205 So. 3d 820, 821 (Fla. 2d DCA
2016) (finding fundamental error where trial court called its own
fact witness who provided substantial portion of testimony against
defendant). “While a trial court may ask relevant questions of
witnesses at a hearing, the court commits fundamental error when
it assumes the role of prosecutor and introduces its own evidence.”
Id. A court abandons its neutral role and commits fundamental
error by sua sponte prompting the prosecution to present evidence
or take certain actions that allow the State to prove its case when
it otherwise may not have done so. See Sparks, 740 So. 2d at 37
(“[T]he trial court judge crossed the line from neutral magistrate
to advocate by directing the prosecutor’s attention to evidence on
the core issue of the credibility of the defendant.”); Lyles v. State,
742 So. 2d 842, 843 (Fla. 2d DCA 1999) (finding fundamental error
where trial court sua sponte ordered defendant’s fingerprints to be
taken to satisfy a “deficiency in the State’s proof”).

     Though courts must remain neutral, a court does not
necessarily abandon neutrality by acting on its own, even if the
action ultimately benefits one of the parties. In Kirkpatrick v.
State, the trial court sua sponte continued a probation revocation
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hearing over defense objection to hear from three additional
witnesses regarding the defendant’s alleged violation. 769 So. 2d
515, 517 (Fla. 1st DCA 2000). After considering the additional
testimony, the court found that the defendant violated his
probation. Id. On appeal, we rejected the defendant’s argument
that the court abandoned its neutral role and deprived the
defendant of a fair and impartial trial. Id. at 518. We explained
that although the testimony was conflicting, there was sufficient
evidence presented during the State’s initial presentation of its
case to support a finding of a violation. Additionally, the trial judge
“had no idea how the requested witnesses would testify and merely
identified these witnesses as individuals he wanted to hear from
as part of his search for the truth.” Id. We concluded, “the trial
court’s actions . . . did not cross the line and were, in fact, nothing
more than the actions of a neutral fact finder attempting to resolve
conflicts in the testimony presented.” Id.

     Here, too, we do not believe the court crossed the line between
neutral arbiter and prosecutor by continuing the sentencing
hearing to give the victim another opportunity to be heard. The
court, after all, was informed at the initial sentencing hearing that
the victim wanted to be present, but she could not be reached. Our
state constitution establishes that a victim’s rights include the
rights to be present “and to be heard when relevant” during “all
crucial stages of criminal proceedings.” Art. I, § 16(b), Fla. Const.
The legislature further instructs that the sentencing court must
permit the victim of the crime to “[a]ppear before the sentencing
court for the purpose of making a statement under oath for the
record.” § 921.143(1)(a), Fla. Stat. (2015).

     Like in Kirkpatrick, the court in this case had no way of
knowing what the victim would say or whether she would provide
any statement at all. Nor could the victim’s statement have any
impact on Baugh’s HFO status, as he stipulated to that
classification and was habitualized at the initial sentencing
hearing. Thus, even assuming the court departed from its neutral
role, its actions did not rise to the level of fundamental error. See
Valley v. State, 105 So. 3d 596, 600 (Fla. 4th DCA 2013) (declining
to find fundamental error where there was sufficient evidence to
support trial court’s ruling without the evidence obtained as a
result of court’s departure from neutrality); Mathew v. State, 837

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So. 2d 1167, 1170 (Fla. 4th DCA 2003) (“[N]ot every act or comment
that might be interpreted as demonstrating less than neutrality
on the part of the judge will be deemed fundamental error.”).

     In Baugh’s second issue, he contends the trial court
fundamentally erred by relying on the victim’s unsworn statement
in fashioning his sentence. He points to this Court’s decision in
Patterson v. State, which held that section 921.143, Florida
Statutes (2016), * bars the admission of an unsworn victim impact
statement in a sentencing hearing. 994 So. 2d 428 (Fla. 1st DCA
2008). But see Dickie v. State, 216 So. 3d 35 (Fla. 2d DCA 2017)
(certifying conflict with Patterson).

     Patterson involved a claim of ineffective assistance of trial
counsel for failing to object to the introduction of an unsworn
statement from the victim’s family member at the sentencing
hearing. 994 So. 2d at 429. In a short opinion, we construed section

    *   Section 921.143 provides in pertinent part as follows:

         (1) At the sentencing hearing, and prior to the
    imposition of sentence upon any defendant who has been
    convicted of any felony or who has pleaded guilty or nolo
    contendere to any crime, including a criminal violation of
    a provision of chapter 316, the sentencing court shall
    permit the victim of the crime for which the defendant is
    being sentenced, the victim’s parent or guardian if the
    victim is a minor, the lawful representative of the victim
    or of the victim’s parent or guardian if the victim is a
    minor, or the next of kin of the victim if the victim has
    died from causes related to the crime, to:

        (a) Appear before the sentencing court for the
    purpose of making a statement under oath for the record;
    and

         (b) Submit a written statement under oath to the
    office of the state attorney, which statement shall be filed
    with the sentencing court.



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921.143 to require that written statements from victims or their
families be made under oath in order to be considered by the
sentencing court. Id. In that case, because it was “apparent that
the sentencing judge relied on the erroneously admitted evidence
when imposing appellant’s sentence,” we reversed the summary
denial of the claim and remanded for an evidentiary hearing. Id.

     Based on Patterson, the trial court erred in accepting the
victim’s unsworn statement in this case. However, the error did
not rise to the level of fundamental error. Unlike the facts in
Patterson, it is not apparent from the record that the court relied
on the victim’s unsworn statement in sentencing Baugh to twenty
years in prison, rather than the fifteen years mandated by the PRR
statute. The State did not argue for an enhanced sentence based
on the victim’s statement, nor did the court give any indication
that it was influenced by the statement. Additionally, the twenty-
year sentence was well within the court’s discretion to impose and
far less than the maximum of thirty years allowed by the
sentencing statute and recommended by the victim.

     To the extent Baugh argues the court committed fundamental
error by depriving him of his rights to confrontation under section
775.084(3)(a)3., Florida Statutes, that argument is without merit.
Section 775.084(3)(a) provides that in a proceeding to “determine
if the defendant is a habitual felony offender . . . all evidence
presented shall be presented in open court with full rights of
confrontation, cross-examination, and representation by counsel.”
As discussed above, the victim’s unsworn statement had no
bearing on the court’s determination of Baugh’s HFO status. The
court adjudicated Baugh as an HFO at the beginning of the initial
sentencing hearing in full compliance with the statute and with
Baugh’s stipulation that he satisfied the conditions for
habitualization.

    AFFIRMED.

B.L. THOMAS, C.J., and WOLF and RAY, JJ., concur.




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              _____________________________

   Not final until disposition of any timely and
   authorized motion under Fla. R. App. P. 9.330 or
   9.331.
              _____________________________


Andy Thomas, Public Defender, and Barbara J. Busharis,
Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Daniel Krumbholz,
Assistant Attorney General, Tallahassee, for Appellee.




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