       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                     KAREEN KENNETH WALKER,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-2179

                             [August 1, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Meenu      Sasser,     Judge;    L.T.    Case     No.
502012CF011220AXXXMB.

   Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special
Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional
Counsel, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

   The Defendant appeals his conviction for one count of second-degree
murder with a firearm. The Defendant raises several issues, and we affirm
with one exception. We agree with the Defendant that the court erred in
considering his jailhouse behavior at sentencing.

   Our review of a court’s sentence is de novo, Norvil v. State, 191 So. 3d
406, 408 (Fla. 2016), but is limited when the court has sentenced the
defendant within the minimum and maximum limits established by the
legislature. Nusspickle v. State, 966 So. 2d 441, 444 (Fla. 2d DCA 2007).
This limited review includes the consideration of impermissible factors at
sentencing. Charles v. State, 204 So. 3d 63, 66 (Fla. 4th DCA 2016).

   At sentencing, the State informed the court of the Defendant’s prior
convictions. The State then argued that the Defendant misbehaved in jail,
and stated:
      And he’s been a total -- constant misbehavior in the jail. Not
      the victim of other inmates, but, in fact, victimizing the
      deputies, throwing urine on them and striking them, which
      leads to these other charges.

    After counsel for the State and the Defendant concluded their
argument, the court determined the Defendant was subject to the 10-20-
Life Statute. The court sentenced him to “forty years’ imprisonment, a
mandatory minimum imprisonment of forty years imprisonment day-to-
day for life punishment,” with credit for time served.

    Relevant here is the Florida Supreme Court’s holding that “a trial court
may not consider a subsequent arrest without conviction during
sentencing for the primary offense.” Norvil, 191 So. 3d at 410. Here, the
court stated at sentencing that the “court is also taking into consideration
the constant misbehavior in the jail with regards to his improper actions
towards the guards and the issues that are going on in the jail with respect
to that as well.” This was contrary to Norvil.

  The court considered a factor at sentencing that the Florida Supreme
Court has found impermissible. Thus, we vacate the Defendant’s sentence
and remand for resentencing before a different circuit judge.

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

MAY and CIKLIN, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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