        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                              PIERRE IMBERT,
                                 Appellant,

                                       v.

                            STATE OF FLORIDA,
                                 Appellee.

                                No. 4D13-1675

                              [January 7, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Robert R. Makemson, Judge; L.T. Case No.
562012CF000925A.

   Edward J. Mosher, Fort Pierce, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for
appellee.

DAMOORGIAN, C.J.

   Pierre Imbert appeals his judgment and sentence for one count of
lewd or lascivious exhibition by an offender over the age of 18 and one
count of lewd or lascivious battery. Imbert raises four arguments on
appeal.1   We affirm on all grounds but write to address Imbert’s
argument that the trial court erred in considering an uncharged crime
during sentencing.

    At Imbert’s sentencing hearing, the state presented testimony from an
officer who investigated a different case involving Imbert. The crime that

   1   Imbert sets forth the following arguments: (1) the trial court erred by
allowing the trial to proceed without providing Imbert with a Creole interpreter;
(2) the statute governing lewd or lascivious battery—section 800.04(4), Florida
Statutes—is unconstitutionally vague because it does not provide definitions for
the terms “entice” or “encourage;” (3) the trial court improperly considered an
uncharged crime against Imbert at sentencing; and (4) ineffective assistance of
counsel is apparent on the face of the record.
the officer investigated was similar to the criminal act in this case.
According to the officer, the case did not go forward because neither the
minor victim, nor her mother, wanted to prosecute. Defense counsel
objected to the court’s consideration of the uncharged crime. Without
making a formal ruling on the objection, the court noted:

      It’s not a violation and it’s a constitutional right to consider
      other relevant factors when determining an appropriate
      sentence. And what has been presented to me was that the
      only thing that kept them from pursuing the charges was the
      victim and the victim’s mother declined to participate and to
      prosecute or to cooperate.

Imbert denied the allegations in the uncharged case and the court stated
the following before announcing Imbert’s sentence: “I have taken into
consideration the Defendant’s lack of criminal history. I have also taken
into consideration the facts of this case and the scoresheet.” The court
sentenced Imbert to six years in prison followed by five years of sex
offender probation with electronic monitoring. This appeal follows.

   On appeal, Imbert argues that the trial court violated his due process
rights at sentencing by considering the uncharged crime. Because
Imbert claims that this sentencing error rendered his sentence illegal,
our standard of review is de novo. Norvil v. State, 39 Fla. L. Weekly
D520, 521 (Fla. 4th DCA Mar. 12, 2014) (citing State v. Valera, 75 So. 3d
330, 331–32 (Fla. 4th DCA 2011); Etienne v. State, 15 So. 3d 890, 893
(Fla. 4th DCA 2009)).

   We begin our analysis by recognizing that the role of the sentencing
judge

      “is not confined to the narrow issue of guilt. [The judge’s]
      task within fixed statutory or constitutional limits is to
      determine the type and extent of punishment after the issue
      of guilt has been determined.         Highly relevant—if not
      essential—to [the judge’s] selection of an appropriate
      sentence is the possession of the fullest information possible
      concerning the defendant’s life and characteristics.”

Id. at D522 (quoting Williams v. New York, 337 U.S. 241, 247 (1949)).
The sentencing judge has broad discretion to impose a sentence within
the statutory range set forth by the legislature, see § 921.002(g), Fla.
Stat. (2012) (permitting judge to impose a sentence up to and including
the statutory maximum), and may consider a variety of factors, including

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a defendant’s criminal history, employment status, family obligations,
and over-all reputation in the community, see Bracero v. State, 10 So. 3d
664, 665 (Fla. 2d DCA 2009) (recognizing that sentencing court has wide
discretion concerning the factors it considers at sentencing). However, a
sentencing court violates a defendant’s due process rights when it relies
on constitutionally impermissible factors. Norvil, 39 Fla. L. Weekly at
D520.

   Imbert argues that the trial court violated his due process rights
because an uncharged crime should never be considered by a trial court
for sentencing purposes. We reject Imbert’s per se rule prohibiting trial
courts from considering uncharged crimes at sentencing.

   “The United States Supreme Court has held that it is not a violation of
a defendant’s constitutional rights to consider other relevant factors
when determining an appropriate sentence.” Dowling v. State, 829 So.
2d 368, 371 (Fla. 4th DCA 2002) (citing Roberts v. United States, 445
U.S. 552, 556 (1980); Williams, 337 U.S. at 246–52). The Florida
Legislature recognized a number of relevant factors in enacting section
921.231 of the Florida Statutes, which governs presentence investigation
reports. See § 921.231, Fla. Stat. Subsection (1) lists the factors that
should be included in a full presentence investigation report, including
“the offender’s prior record of arrests and convictions.” § 921.231(1), Fla.
Stat. Against this legislative backdrop, we determined that a sentencing
court may consider a defendant’s pending charges if they are related to
the crime for which the defendant is being sentenced. See Whitehead v.
State, 21 So. 3d 157, 158–60 (Fla. 4th DCA 2009) (trial court
appropriately considered defendant’s pending charge during sentencing
because it involved the defendant’s conduct toward minors and he was
being sentenced for possession of cannabis, contributing to the
delinquency or dependency of a child, and delivery of a controlled
substance to a minor).

    More recently, in Norvil, we held that there is “no significant difference
between prior arrests and subsequent arrests for sentencing purposes”
because “[i]n both circumstances, the sentencing court will have to
ensure the relevance and reliability of information presented regarding
the alleged criminal activity and allow the defendant an opportunity to
explain or rebut those charges.” 39 Fla. L. Weekly at D521. In so
holding, we considered the fact that: “(1) the new charge was relevant;
(2) the allegations of criminal conduct were supported by evidence in the
record; (3) the defendant had not been acquitted of the charge that arose
from the subsequent arrest; (4) the record [did] not show that the trial
court placed undue emphasis on the subsequent arrest and charge in

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imposing sentence; and (5) the defendant had an opportunity to explain
or present evidence on the issue of his prior and subsequent arrests.” Id.
at D522.

    Though Norvil does not directly address the propriety of a sentencing
court’s consideration of uncharged crimes, other jurisdictions have
permitted trial courts to consider a defendant’s uncharged crimes for
sentencing purposes. See, e.g., Elias v. State, 286 N.W.2d 559, 562 (Wis.
1980) (“This court has stated that the trial court in imposing sentence for
one crime can consider other unproven offenses, since those other
offenses are evidence of a pattern of behavior which is an index of the
defendant’s character, a critical factor in sentencing.”); cf. People v.
Bratcher, 737 N.Y.S.2d 451, 453 (N.Y. App. Div. 2002) (“Although a court
may consider uncharged crimes in sentencing a defendant, it ‘must
assure itself that the information upon which it bases the sentence is
reliable and accurate . . . .” (internal citations and quotations omitted)).

   While it is not our intent to reduce a sentencing hearing to a hybrid
criminal trial, we hold that a sentencing court may consider an
uncharged crime upon proper application of the Norvil factors. See
United States v. Weston, 448 F.2d 626, 633 (9th Cir. 1971) (“We do not
desire to transform the sentencing process into a second trial, and we
believe that other criminal conduct may properly be considered, even
though the defendant was never charged with it or convicted of it.”).
However, an uncharged crime is certainly not a conviction or finding of
guilt and the trial court must avoid “placing undue emphasis on [it] at
the sentencing hearing.” Norvil, 39 Fla. L. Weekly at D522 (quoting
Jansson v. State, 399 So. 2d 1061, 1062–63 (Fla. 4th DCA 1981)); see
also Denson v. State, 915 P.2d 284, 287 (Nev. 1996) (“While a district
court has wide discretion to consider prior uncharged crimes during
sentencing, the district court must refrain from punishing a defendant
for prior uncharged crimes. Consideration of those crimes is solely for
the purpose of gaining a fuller assessment of the defendant’s ‘life, health,
habits, conduct, and mental and moral propensities.’” (citations
omitted)).

    Our application of the Norvil factors to the facts of this case leads us
to conclude that the trial court did not err in considering Imbert’s
uncharged crime. First, the uncharged crime was relevant because the
allegations involved criminal activity similar to what occurred in this
case. Second, these allegations were supported by the officer’s testimony
at the sentencing hearing, which included details of the incident
obtained through an interview of the victim and a controlled phone call
to Imbert. The reason the case did not go forward was because the

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victim and her mother did not wish to prosecute and Imbert was given
the opportunity to explain and present evidence to rebut the officer’s
testimony. Finally, the record does not indicate that the trial court relied
on the uncharged crime in determining Imbert’s sentence.2 For these
reasons, we reject Imbert’s argument that the trial court committed
sentencing error and affirm his judgment and sentence in all respects.

   Affirmed.

GROSS and MAY, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




   2   In fact, when announcing the basis for Imbert’s sentence, the trial court
noted Imbert’s lack of criminal history and did not mention the uncharged
crime.

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