       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                    TYRIE DEVEONTA THEOPHILE,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-2841

                              [March 7, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Karen    M.     Miller,   Judge;   L.T.    Case    No.
502012CF001011AMB.

  Carey Haughwout, Public Defender, and Tatjana Ostapoff, 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.

KUNTZ, J.

   The Defendant appeals his conviction for second-degree murder,
aggravated battery, and robbery, and sentence of forty-five years’
imprisonment. He raises several issues on appeal and we affirm each
without comment except for one.

    We agree with the Defendant that the court erred when it considered a
fact at sentencing that specifically conflicted with a factual finding by the
jury. See, e.g., Baehren v. State, 43 Fla. L. Weekly D136 (Fla. 4th DCA
Jan. 10, 2018); Guerra v. State, 212 So. 3d 541, 542 (Fla. 4th DCA 2017).
While orally pronouncing the sentence, the court stated that the Defendant
“pulled out a firearm”; that he was “brandishing a firearm”; and, again,
that he “pulled out firearms.” Yet as counsel for the Defendant noted at
the hearing and again argues on appeal, the verdict form specifically asked
if “the Defendant actually possess[ed] a firearm,” and the jury answered
“no.”
     Further, the convictions on other charges do not explain the court’s
statements. Contra Howard v. State, 820 So. 2d 337, 340 (Fla. 4th DCA
2002). Here, the jury specifically found the Defendant did not possess a
firearm making it impossible to reconcile the court’s statements at
sentencing with the jury’s verdict.

   Because of the court’s consideration of a fact at sentencing that
specifically conflicts with the jury’s verdict, we vacate the Defendant’s
sentence and remand the case for resentencing before a different circuit
judge. The Defendant’s conviction is otherwise affirmed.

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

GERBER, C.J., and GROSS, J., concur.

                           *        *         *

   Not final until disposition of timely filed motion for rehearing.




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