        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        ROBERT J. BAEHREN,
                            Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D16-364

                          [January 10, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin  County;   Lawrence   Mirman,    Judge;    L.T.  Case    No.
13001538CFAXMX.

  Carey Haughwout, Public Defender, and Erika Follmer, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

CIKLIN, J.

   Robert Baehren appeals sentences imposed for multiple convictions.
Because we agree with his assertion that the trial court impermissibly
considered a pending and unresolved charge in making its sentencing
determination, we reverse and remand for resentencing before a different
judge.

   The sentences on appeal correspond to charges brought in December
2013. The defendant pled no contest to most of the charges and was
released on his own recognizance until the sentencing hearing, which
was set for three months later in April 2014. The defendant failed to
appear for his sentencing hearing and the trial judge ordered a bench
warrant to issue. In October 2015, the defendant was apprehended on
the bench warrant. Additionally, the state charged the defendant with
one count of felony failure to appear.

    The sentencing hearing took place in January 2016, at which time the
felony failure to appear charge was still pending. After some discussion
of whether it was permissible, the defendant gave an unsworn allocution
and requested a sentence of one year in the county jail followed by six
months in a rehabilitative facility. Despite the fact that the state
requested a five-year prison sentence for the sixty-four year old
defendant, the trial court adjudicated the defendant guilty and imposed a
ten-year sentence. In pronouncing sentence, the trial court explained:

      [T]his is what I believe to be the appropriate sentence given
      everything involved in your case, including what happened
      after you entered the plea with regard to the not showing up.
      And limiting it to that. But the primary justification is your
      conduct in this case, your age, your history of convictions,
      who you are, whether you need to be removed from society.

   On appeal, the defendant argues that the trial court erred in
considering his failure to appear since it was a pending charge for which
a conviction had not been obtained. We agree.

    Generally, a sentence within the permissible statutory range is not
subject to review, but an exception is made “when the sentence is based
on constitutionally impermissible factors, such as unsubstantiated
allegations of wrongdoing.” Williams v. State, 193 So. 3d 1017, 1018
(Fla. 1st DCA 2016). Whether a trial court violates a defendant’s due
process rights by considering impermissible factors in sentencing is a
question of law subject to de novo review. Norvil v. State, 191 So. 3d
406, 408 (Fla. 2016).

   Our analysis of this issue is straightforward. In Norvil, the Florida
Supreme Court adopted a “bright line rule” that “a trial court may not
consider a subsequent arrest without conviction during sentencing for
the primary offense.” Id. at 410. “The State has the burden ‘to show
that the trial court did not rely on the pending charge resulting from the
subsequent arrest.’” Fernandez v. State, 212 So. 3d 494, 497 (Fla. 2d
DCA 2017) (quoting id. at 409).

   Because the defendant’s failure to appear was charged as a new
substantive crime in a separate case which was still pending at the time
of his sentencing, the trial court erred by factoring in the unresolved
charge.

   The state asserts that “[f]orcing a trial court to ignore a fact which
occurred directly before it such as a defendant’s failure to appear would
force a trial judge to ignore the reality of the defendant before the court
for sentencing.” As compelling as the state’s argument may be, we are

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bound by the bright line rule announced in Norvil. Consequently, we
reverse the defendant’s sentences and we remand for resentencing before
a different judge. See Guerra v. State, 212 So. 3d 541, 542 (Fla. 4th DCA
2017) (reversing for sentencing before a different judge where sentence
was based on improper considerations).

   We additionally take this opportunity to reiterate “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).

        Like the receipt of unsworn letters, the opportunity of the
        defendant to “allocute” gives the defendant a chance to
        express to the sentencing court any additional information to
        aid the court in making a sound and reasoned judgment on
        the most important matter upon which it is called to judge,
        that is, the appropriate sentence to be meted out to the
        convicted criminal defendant.

Id.

   The defendant was properly afforded the opportunity to make an
unsworn allocution below. He argues, however, that the trial court erred
in affording his allocution diminished weight because it was unsworn.
We are unaware of any authority requiring a trial court to assign the
same weight to an unsworn statement as it would to testimony given
under oath and subject to cross examination and potential perjury
charges.

   We find the remainder of the arguments raised by the defendant to be
without merit.

      Reversed and remanded with instructions.

GERBER, C.J., and LEVINE, J., concur.

                            *         *          *

      Not final until disposition of timely filed motion for rehearing.




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