          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                          JEHU ALEX COMPERE,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D18-1535

                             [January 9, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562016CF002335B.

  Carey Haughwout, Public Defender, and Timothy Wang, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley Brooke Moody, Attorney General, Tallahassee, and Deborah
Koenig, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals his sentence after entering a no contest plea.
He argues the trial court fundamentally erred in permitting the State to
cross-examine him during his allocution. We disagree and affirm.

   The State charged the defendant with eleven financial crimes 1, six of
which included a co-defendant. The defendant entered a no contest plea
with a two-year prison cap and three years’ probation; he stipulated to a
factual basis. The court was given no information about the crimes during
the change of plea hearing.

    Based on the defendant’s scoresheet, the maximum possible sentence


1 Of the crimes charged, the defendant pled to one count of third degree grand
theft, two counts of organized fraud, four counts of criminal use of an ID, one
count of possession of a stolen credit card, and one count of dealing in stolen
credit cards. The State dismissed one of the counts.
was fifty years. He acknowledged that he understood the maximum
possible penalty. The defendant did not score mandatory prison.

   At the subsequent sentencing hearing, defense counsel called the
defendant’s mother and sister to testify. Neither of them were sworn before
giving their testimony. They both asked for leniency in sentencing because
the defendant accepted responsibility for what he did. The State did not
cross-examine either witness.

    The defendant then gave unsworn testimony.           He accepted full
responsibility for his actions. He told the court he was no longer with his
girlfriend, the co-defendant. He asked the court to impose house arrest or
probation. When given the chance to speak freely to the court and victim,
the defendant apologized for his “mistakes.” After being questioned by the
court, he agreed his actions were a “consciously bad decision.”

   The State then, without objection, cross-examined him about the
charges and credit cards taken out under the victims’ names. When asked
how he got the victims’ names, dates of birth, social security numbers, and
addresses, he admitted getting them from a website. He did so “with the
express purpose of obtaining somebody’s information to open fraudulent
accounts for them.”

   One of the victims, who also wrote a letter to the court, gave sworn
testimony.    He testified the defendant obviously got his personal
information online. He asked the court to “give [the defendant] whatever
[sentence] the court will allow.”

   Following argument by both sides, the trial court remarked the crime
sounded intentional and sophisticated.       The court sentenced the
defendant to two years imprisonment followed by three years of probation,
the same sentence as the agreed-to cap. The defendant moved to mitigate
sentence or reduce his sentence, pursuant to Florida Rule of Criminal
Procedure 3.800(c). The court denied the motion. The defendant now
appeals.

    The defendant argues the trial court fundamentally erred by allowing
the State to cross-examine him about facts pertaining to uncharged
offenses during his allocution. The State responds the defendant failed to
preserve the issue because his counsel did not object to the cross-
examination. And, because the victim corroborated the defendant’s
testimony during cross-examination, there is no fundamental error.

   We have de novo review of this sentencing issue. Allen v. State, 211 So.

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3d 48, 52 (Fla. 4th DCA 2017).

   Generally, a trial court may impose a sentence “within the minimum
and maximum limits set by the legislature [and it] ‘is a matter for the trial
Court in the exercise of its discretion, which cannot be inquired into upon
the appellate level.’” Nusspickel v. State, 966 So. 2d 441, 444 (Fla. 2d DCA
2007) (citation omitted).

   However, an exception exists if the facts establish a violation of a
specific constitutional right during sentencing. Howard v. State, 820 So.
2d 337, 340-41 (Fla. 4th DCA 2002). The State bears the burden to show,
from the record as a whole, that the trial court did not rely on such
impermissible considerations when sentencing the defendant. Nusspickel,
966 So. 2d at 444–445.

    To properly preserve an issue for appellate review, a party must make
a timely, contemporaneous, and specific objection, stating the legal ground
upon which it is based. Mansueto v. State, 148 So. 3d 813, 815 (Fla. 4th
DCA 2014).

    Where an issue is not preserved, it must qualify as fundamental error
or it is waived. Hill v. State, 246 So. 3d 392, 394 (Fla. 4th DCA 2018). A
fundamental sentencing error is “one that affects the determination of the
length of the sentence such that the interests of justice will not be served
if the error remains uncorrected.” Maddox v. State, 760 So. 2d 89, 100
(Fla. 2000).

   Because defense counsel failed to make a contemporaneous objection
to the State’s cross-examination of the defendant during allocution, we
cannot address the issue unless the error is fundamental.

   Florida Rule of Criminal Procedure 3.720 governs sentencing hearings.
That rule provides: “The court shall entertain submissions and evidence
by the parties that are relevant to the sentence.” Fla. R. Crim. P. 3.720(b).
Failure to comply with Rule 3.720(b) is reversible error. State v. Munson,
604 So. 2d 1270, 1271 (Fla. 4th DCA 1992).

    We have interpreted the rule to mean that “a criminal defendant prior
to sentencing has the opportunity to make an unsworn statement to the
sentencing judge in allocution.” Jean-Baptiste v. State, 155 So. 3d 1237,
1242 (Fla. 4th DCA 2015). In making this statement, the defendant is
allowed to “express to the sentencing court any additional information to
aid the court in making a sound and reasoned judgment.” Id.


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   Here, the defendant called his mother and sister, both of whom asked
for leniency in their unsworn statements to the court. The court then
permitted the defendant to provide unsworn testimony. The trial court
complied with rule 3.720(b). There was no reversible error.

   Yet, the defendant suggests that the court erred in allowing the State
to cross-examine the defendant and then use his responses concerning
uncharged crimes against him in sentencing. We disagree.

   Case law involving allocutions has often involved downward departure
hearings, both seemingly occurring simultaneously. That case law has
blurred the lines between the two proceedings. In doing so, what is
permitted during each has become unclear.

   Allocution is designed to allow the defendant an opportunity to speak
freely with the court, to provide some explanation of the defendant’s
conduct, and to allow the defendant to provide input on the impending
sentence. Hill, 246 So. 3d at 395. In such proceedings, the defendant is
not sworn. Jean-Baptiste, 155 So. 3d at 1241-42.

    It is not uncommon however for the trial judge to question the
defendant to clarify the information the defendant conveys. We have found
no case that has actually “held” that it is fundamental error for the State
to cross-examine the defendant during an allocution. Indeed, there is little
reason for the State to do so as the purpose of the allocution is for the
defendant to speak to the judge.

   Downward departure hearings however have their own set of rules.
Section 921.0026, Florida Statutes (2018), entitled “Mitigating
Circumstances,” enumerates the circumstances under which a trial court
can depart from the lowest permissible sentence. The hearing requires a
two-step process, in which the court first determines if a departure is
permitted, and then whether the court should exercise its discretion in
granting the departure. State v. Waterman, 12 So. 3d 1265, 1267 (Fla. 4th
DCA 2009). During those proceedings, the testimony is generally sworn,
and the State is permitted to cross-examine the defendant and other
witnesses.

    The blurred lines on when the State may cross-examine the defendant
have resulted from instances in which the trial court hears the defendant’s
allocution at the same time as the evidence in support of a downward
departure motion. Then, the defendant is sworn (for the purposes of the
motion), but also speaks to the court as part of the allocution while sworn.
This is illustrated in Jean-Baptiste.

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    There, the defendant argued the court reversibly erred by requiring him
to be sworn and subject to cross-examination during his allocution. Jean-
Baptiste, 155 So. 3d at 1239. The State responded that because the
allocution and the motion for downward departure took place
simultaneously, there was no error. Id. at 1242. We held the defendant
failed to preserve any error by failing to state a reason for demanding an
unsworn statement separate from the departure testimony. Id. at 1240.

   Because the defendant offered his allocution “in the context of a
sentencing hearing which included the introduction of evidence in support
of [his] motion for downward departure, the trial court did not err in
requiring [him] to be sworn and subject to cross-examination.” Id. at 1242.
Fundamental error did not occur when the defendant was not permitted
to make an unsworn statement. Id. We specifically noted rule 3.720 does
not require the defendant to be unsworn nor does it prohibit a defendant
from cross-examination. Id. at 1241.

   In Guerra v. State, 212 So. 3d 541 (Fla. 4th DCA 2017), the court and
the State cross-examined the defendant over defense counsel’s objection.
Guerra, 212 So. 3d at 542. The opinion reveals the trial court’s frustration
with the defendant when he refused to name a co-defendant despite the
court and State’s questioning of him. Id. The court then sentenced the
defendant to 45 years imprisonment followed by 10 years’ probation. Id.

   We reversed because the court considered the defendant’s failure to
name a co-defendant in imposing the sentence. Id. In doing so, we
commented that the defendant is entitled to make an unsworn statement
without cross-examination before sentencing. Id. at 542 (relying on Jean-
Baptiste, 155 So. 3d at 1237).

   Important is what we did not say. We did not say that fundamental
error occurred when the court allowed the State to cross-examine the
defendant. In fact, because defense counsel had objected, there was no
need to even consider fundamental error.

    Here, the trial court sentenced the defendant to two years in prison
followed by three years’ probation, the precise term of the plea cap. The
record fails to reflect that the sentence was affected by anything learned
during the State’s cross-examination of the defendant. Indeed, the
defendant’s response as to how he obtained the victims’ information was
cumulative of a victim’s testimony. There was no error, much less
fundamental error. Therefore, defense counsel could not have rendered
ineffective assistance of counsel.

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  Affirmed.

GROSS and CONNER, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




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