       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        ANTHONY CHAS PARR,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D16-4228

                             [May 23, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No.
43201lCF001175CFAXMX.

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

   Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Appellant pled guilty to a violation of probation imposed after his
convictions for two counts of dealing in stolen property and two counts of
giving false ownership or identification information to a secondhand
dealer. The trial court sentenced him to fifteen years concurrent on each
of the counts for dealing in stolen property and to five year concurrent
sentences for the remaining charges. We reverse the sentences because
the trial court departed from a position of neutrality in the sentencing
proceeding. Appellant also contends that in sentencing him the court
erred in considering juvenile dispositions more than five years old, which
were included on his scoresheet. We disagree, as prior convictions may be
considered, even though they cannot be scored for purposes of
determining the lowest permissible sentence under the Criminal
Punishment Code. We remand for resentencing before another judge.

   In 2011, appellant was charged by information with two counts of
dealing in stolen property and two counts of giving false ownership or
identification information to a secondhand dealer. Appellant pled to the
charges and was adjudicated guilty. He was sentenced to three years in
prison for all counts, followed by two years of probation, and was ordered
to pay restitution.

   Appellant’s probation was set to expire in July 2016. However, in
November 2015, appellant’s probation officer filed a probation violation
report for violations including: failure to report to his probation officer;
change of residence without consent; and failure to pay restitution and
other costs. The officer alleged that appellant absconded and that his
whereabouts were unknown. In the addendum to the violation report, new
charges were added, including leaving his county of residence without
permission and being arrested for possession of heroin.

   In November 2016, the trial court held an initial hearing on appellant’s
VOP. The prosecutor told the judge that plea offers had been made but
were now revoked. After appellant rejected an offer of an eight year cap,
the State offered appellant a straight eight year prison term, but appellant
rejected that offer as well. Appellant told the court that he thought the
eight year cap offer was still open, partially because of his change of
attorneys due to his dissatisfaction with his first attorney. The court then
questioned appellant about the two offers. While appellant said he would
take the eight year cap today, the court was not inclined to accept a capped
sentence. The court asked appellant whether he would take the straight
eight years. After discussing it with his attorney, appellant rejected the
court’s offer.

   At a subsequent hearing, appellant entered an open plea, admitting the
violations, except the possession of heroin charge which the State dropped.
The court stated that based on the underlying offenses and appellant’s
scoresheet, appellant faced a sentence between 13.2 months and forty
years in prison.

   The court reviewed appellant’s sentencing scoresheet which included
numerous juvenile dispositions, all of which were more than five years old.
Appellant then testified, stating that he was homeless and turned himself
in after the VOP warrant was issued. Appellant testified that he wished to
receive treatment, and if released on probation, he would live with his
grandfather. He stated that the victims of “[e]very case [he] ever had” were
his family. The prosecutor cross-examined him on his record, listing
various charges. Appellant could not remember whether all the juvenile
charges were against family members.

   Defense counsel then called appellant’s grandfather to testify. The
grandfather stated that appellant’s family did not want him to go back to

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jail. The court, not the prosecutor, asked the grandfather if appellant was
a danger to the community, and he responded, “Absolutely not.”

   The court began to question the grandfather about appellant’s juvenile
and adult criminal record. Appellant’s juvenile dispositions included
burglary of a dwelling, grand theft of a vehicle, forgery, assault, and
improper exhibition of a weapon. The court commented on appellant’s two
burglaries of a dwelling, juvenile dispositions, and the grandfather and
appellant responded that those incidents occurred at appellant’s mother’s
house. Appellant told the court that the grand theft of a vehicle charge
was from when he was a juvenile. The court stated, “It counts though,
correct. Whose car did he steal?” The grandfather and appellant admitted
that appellant took the grandfather’s van. The court then asked about the
juvenile forgery disposition, and the grandfather responded that appellant
took his checks. The court asked about two other grand theft charges,
adult offenses, but the grandfather told the court that he did not know
about those offenses. The following exchange took place:

      THE COURT: Two other - two other grand thefts, are you
      familiar with those?
      GRANDFATHER: You'll have to tell me what they are.
      THE COURT: I don't know, I'm asking you. Do you know what
      they are?
      THE DEFENDANT: I don't - one was - one was –
      THE COURT: I'm not asking you, I'm asking [your
      Grandfather].
      GRANDFATHER: Sir, I don't know.
      THE COURT: Cause you're coming into my courtroom and
      you're saying he's not a danger to anyone else.
      GRANDFATHER: I - I don't think -
      THE COURT: He's never victimized anybody else?
      GRANDFATHER: No, not that I know of.
      THE COURT: Not that you know of.
      GRANDFATHER: Uh-huh.
      THE COURT: Is your lack of knowledge intentional or
      accidental in that regard?
      GRANDFATHER: My lack of knowledge is because -
      THE COURT: Are you keeping your head in the sand -
      GRANDFATHER: I have no knowledge of that.
      THE COURT: As far as whether he's violated anyone else's
      rights?
      GRANDFATHER: I do not know that he has.
      THE COURT: Okay. But is that intentional on your part or
      are you just accidental - are you - are you -

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GRANDFATHER: That's the way I feel.
THE COURT: Did you inquire of him in that regard?
GRANDFATHER: That's -
THE COURT: Have you looked into it?
GRANDFATHER: Uh, not intentionally look into it.
THE COURT: Because you just told me he's not a threat to
anybody else.
GRANDFATHER: I do not believe him to be a threat to anyone.
THE COURT: Okay. Because you don't know if he's - he's
violated anyone else's rights.
GRANDFATHER: Not - it has not come to my attention that he
has.
THE COURT: How about assault?
GRANDFATHER: No.
THE COURT: Improper exhibition of a weapon?
GRANDFATHER: No.
THE COURT: That is no, you don't know anything about it.
GRANDFATHER: He's not done that.
THE DEFENDANT: No, it's -
THE COURT: It's on his record. I'm looking at his scoresheet.
GRANDFATHER: A gun?
THE COURT: I'm looking at his scoresheet. It's on his record.
GRANDFATHER: I don't know anything about a gun. I have
guns, but I don't know that -
THE COURT: I don't know that it's a gun -
GRANDFATHER: He's every had any -
THE COURT: It says weapon, it doesn't mean it's a gun.
Resisting a merchant, you're not a merchant, are you?
GRANDFATHER: No sir.
THE COURT: Resisting an officer without violence, are you
aware of that?
GRANDFATHER: No sir.
THE COURT: Driving while license suspended, theft - another
theft charge. You've told me you don't know of any other
victims other than your family.
GRANDFATHER: That's correct.
THE COURT: Okay. And he's violated your family’s rights
because of what, a drug problem?
GRANDFATHER: No, I don't know that he's ever been on
drugs.
THE COURT: So you don't know what motivates him to do
these things?
GRANDFATHER: I think he just thought he could get away it
and, uh -

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      THE COURT: So but what - what -
      GRANDFATHER: It was proven not so.
      THE COURT: We know in our - in the world that we live in,
      people do things for different reasons. Most criminals have
      drug problems and they violate people's rights, they steal from
      them to get money to get drugs or to buy whatever they want.
      How do you - who is he - what does - what does he do? How
      is it - he just violates the rights of people in your family? Does
      he hate all of you? What - what's the situation? I don't get it.
      GRANDFATHER: I just thought it was - I think he thought it
      was an easy way to get things so he could, uh, prepare or to
      provide for himself.
      THE COURT: And he limits it to your family in that –
      GRANDFATHER: The occasions when he's done that have
      been limited to myself, uh, my live-in girlfriend and - and his
      mother.
      THE COURT: All right. Those are the only questions I have.
      Does the State have any additional questions?

The State then asked the grandfather only one question - whether
appellant attempted to check into rehab when he learned that he violated
his probation, as appellant testified earlier in the hearing. The grandfather
stated that he was not aware of that. He testified that he hoped that
appellant could come home, to which the court replied, “So he can steal
from you and burglarize and commit grand theft against you?”

   After presentation of the evidence, the State argued for a twelve year
sentence, noting his criminal conduct commenced in 2000 as a juvenile
and continued through 2012. Appellant sought a sentence of six years.
The court terminated appellant’s probation, and sentenced him to
concurrent sentences of fifteen years for the two counts of dealing in stolen
property and five years for the two counts of giving false identification
information to a secondhand dealer.

   Appellant filed a notice of appeal of his sentence. After filing his notice,
he filed a rule 3.800(b)(2) motion to correct his sentence, arguing that his
juvenile dispositions should not have been included on his scoresheet
because they occurred over five years before his primary offenses and that
his sentence violated due process and the Eighth Amendment. The court
denied this motion.

   Appellant argues that the court violated his rights by departing from a
position of neutrality in the sentencing process. A court commits
fundamental error by abandoning its neutral role and assuming the role

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of the prosecutor in a criminal prosecution. See Cagle v. State, 821 So. 2d
443, 444 (Fla. 2d DCA 2002). In Cagle, which involved a probation
revocation proceeding, the court explained:

      A trial court may conduct probation revocation proceedings in
      an informal manner and it may question witnesses, but it may
      not assume the role of the prosecutor. Edwards v. State, 807
      So. 2d 762, 763 (Fla. 2d DCA 2002). Doing so deprives the
      defendant of the fair and impartial tribunal which is the
      cornerstone of due process. See Marshall v. Jerrico, Inc., 446
      U.S. 238, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980). Such
      conduct amounts to fundamental error that may be raised for
      the first time on appeal. See Sparks v. State, 740 So. 2d 33
      (Fla. 1st DCA 1999).

Id. This principle also applies to a sentencing proceeding. See Smith v.
State, 205 So. 3d 820, 821 (Fla. 2d DCA 2016).

   In Sears v. State, 889 So. 2d 956, 959 (Fla. 5th DCA 2004), in a
probation proceeding, the appellate court reversed because the trial court
strayed too far from a position of neutrality. The court said:

      The requisite for a neutral finder of fact does not foreclose a
      judge from asking questions designed to make previously
      received ambiguous testimony clear. See McFadden [v. State,
      732 So. 2d 1180, 1185 (Fla. 4th DCA 1999)]. Certainly a trial
      judge should not be compelled to act out of confusion or a
      misapprehension of the facts. The capacity to clear up
      ambiguous or confusing testimony, however, is not an
      invitation to trial judges to supply essential elements in the
      state's case. Id.

      A review of the transcript indicates that the court's
      questioning of witnesses in the present case went well beyond
      an attempt to clear up ambiguities. While numbers are not
      necessarily determinative, we cannot help but notice that the
      trial judge here asked the victim forty questions, while the
      prosecutor asked her three.

Id. (alteration added). Similarly, in this case, a review of the court’s cross-
examination of the grandfather leaves no other conclusion but that the
court was acting as the prosecutor in grilling the witness on the prior
criminal incidents involving his grandson. The court immediately started
the cross-examination of the witness without allowing the prosecutor to

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ask any questions.      The questioning went far beyond clearing up
ambiguities and was directed to discrediting the witness. By the time the
court had finished, the prosecutor had only one question. The court was
not neutral but had taken on the role of the prosecutor.

   As we said in McFadden, 732 So. 2d at 1184, “The requirement of
judicial impartiality is at the core of our system of criminal justice.” We
quoted from State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So.
613, 615 (1939), which bears repeating here:

      This Court is committed to the doctrine that every litigant is
      entitled to nothing less than the cold neutrality of an impartial
      judge. It is the duty of Courts to scrupulously guard this right
      and to refrain from attempting to exercise jurisdiction in any
      matter where his qualification to do so is seriously brought in
      question. The exercise of any other policy tends to discredit
      the judiciary and shadow the administration of justice.

      It is not enough for a judge to assert that he is free from
      prejudice. His mien and the reflex from his court room speak
      louder than he can declaim on this point. If he fails through
      these avenues to reflect justice and square dealing, his
      usefulness is destroyed. The attitude of the judge and the
      atmosphere of the court room should indeed be such that no
      matter what charge is lodged against a litigant or what cause
      he is called on to litigate, he can approach the bar with every
      assurance that he is in a forum where the judicial ermine is
      everything that it typifies, purity and justice. The guaranty of
      a fair and impartial trial can mean nothing less than this.

Id. As it is apparent that the court deviated from a position of neutrality,
it did not secure to this defendant the assurance of judicial impartiality
“at the core of our system of criminal justice.” Id. Therefore, we reverse
and remand for resentencing before a different judge.

    Appellant also challenges the court’s consideration of his juvenile
convictions which were more than five years old at the time of commission
of the current offense, claiming that Norvil v. State, 191 So. 3d 406, 408
(Fla. 2016), precludes their consideration. We disagree. In Norvil, a trial
court had considered an arrest subsequent to the primary offense in
sentencing a defendant, but the Criminal Punishment Code did not
include subsequent arrests as a sentencing factor. Id. at 407-09. The
supreme court held that the trial court could not consider factors not
authorized in the CPC in sentencing, concluding that courts should

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consider only prior arrests and convictions rather than arrests subsequent
to the primary offense. Id. at 409. It looked to those factors enumerated
in the provisions of the presentence investigation report, noting that under
section 921.231(1)(c), Florida Statutes (2010), a court may consider an
offender’s prior arrests and convictions, as well as the definition of “prior
record” in the CPC. Id.; see §§ 921.0021(4), (5), Fla. Stat. (2010).

   The “prior record” of a defendant, as defined in the CPC, excludes
juvenile dispositions for offenses committed more than five years prior to
the primary offense.       See § 921.0021(5), Fla. Stat. (2016).        Such
convictions cannot be scored for purposes of determining the lowest
permissible sentence and should not appear as a “prior record” on the
sentencing scoresheet. See § 921.0021(5), Fla. Stat. (2016); Fla. R. Crim.
P. 3.704(d)(14)(B); Graham v. State, 950 So. 2d 526, 526 (Fla. 4th DCA
2007). Nevertheless, as noted in Norvil, the legislature authorizes the
inclusion of prior arrests and convictions as information to assist the court
in determining a proper sentence for the defendant. See §§ 921.231(1)(c);
948.015(3), Fla. Stat. (2016).       Arrests and convictions for crimes
committed while a juvenile would fall into that broad category, whether or
not they were within five years of the primary offense. The legislature
placed no time limit on the information to be supplied to the court in a
presentence investigation. Thus, appellant’s juvenile convictions could be
considered, even though they could not be scored.

   While it does not appear that a PSI was prepared in this case, this does
not mean that the court could not consider information that would have
been contained in a PSI if it had been available and verified. Because the
prior criminal history of a defendant is deemed relevant, even if not scored
for the CPC lowest permissible sentence, the court may consider it in
sentencing. On remand, however, the court should omit such convictions
on the scoresheet as a “prior record,” because they are not part of the CPC
prior record.

   For the foregoing reasons, we reverse for resentencing by another judge,
consistent with this opinion.

GROSS and TAYLOR, JJ., concur.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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