                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

MARC CHANTELE                        NOT FINAL UNTIL TIME EXPIRES TO
WILLIAMS,                            FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellant,
                                     CASE NO. 1D15-1923
v.

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed June 7, 2016.

An appeal from the Circuit Court for Alachua County.
Aymer L. Curtin, Judge.

Nancy A. Daniels, Public Defender, and Megan Long, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Michael Schaub, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant seeks review of his conviction and sentence for possession of

cocaine with the intent to sell. We affirm Appellant’s conviction without further

comment, but because we agree with Appellant that the trial court fundamentally
erred when it based his sentence on unsubstantiated allegations of misconduct, we

reverse Appellant’s sentence and remand for resentencing before a different judge.

        Appellant was convicted after a jury trial of possession of cocaine with the

intent to sell, a second-degree felony punishable by up to 15 years in prison. His

scoresheet reflected a lowest permissible sentence of a non-state prison sanction,

but based on Appellant’s “lengthy criminal history of convictions [and] arrests,”

the prosecutor requested a five-year prison sentence followed by five years of drug

offender probation. Appellant1 requested 24 months of drug offender probation in

a “level-two program.”

        The trial court sentenced Appellant to 10 years in prison followed by five

years of drug offender probation. The court explained its rationale for this longer-

than-requested sentence as follows:

              The reason I have sentenced him to this sentence is
              because I believe that he has either been directly or
              indirectly involved in the threatening of witnesses in the
              cases against him, both in this case and in the past. And
              he comes across as being one-type person, and I don’t
              believe that, out on the street, he’s that person, and I
              believe that he has been a drug dealer for a long, long
              time, and I believe that he has endangered peoples’ lives
              while he was doing that by committing acts of violence
              or threatening towards them. That’s why I gave him more
              than you asked for.




1
    Appellant represented himself at the sentencing hearing.
                                           2
(emphasis added). Additionally, at the conclusion of the sentencing hearing, the

court stated to the prosecutor: “He has been harassing your witnesses, and I was

concerned about that, and I think I needed to make a statement to him. He needs to

quit that.”

       On appeal, Appellant contends that the trial court committed fundamental

error when it based his sentence on unsubstantiated claims that he threatened

witnesses in this case and prior cases. We agree.

       “A sentence imposed within the statutory limits . . . is generally unassailable

on appeal.”    Martinez v. State, 123 So. 3d 701, 703 (Fla. 1st DCA 2013).

However, an exception to this general rule exists when the sentence is based on

constitutionally impermissible factors, such as unsubstantiated allegations of

wrongdoing.     Id.   (“Taking ‘unsubstantiated allegations of wrongdoing’ as

established fact violates due process.” (quoting Reese v. State, 639 So. 2d 1067,

1068 (Fla. 4th DCA 1994))); see also Craun v. State, 124 So. 3d 1027 (Fla. 2d

DCA 2013) (remanding for resentencing where trial court specifically relied on

speculation that defendant continued co-defendant’s ongoing scheme of defrauding

victims); Epprecht v. State, 488 So. 2d 129, 131 (Fla. 3d DCA 1986) (holding that

speculation that defendant probably committed other crimes was impermissible

sentencing consideration). This is because “a sentence based on mere allegation or




                                          3
surmise violates the fundamental constitutional rights of the defendant.” Martinez,

123 So. 3d at 704.

      At the sentencing hearing, the prosecutor asserted that Appellant had several

prior cases in which the charges against him were dropped because the state could

not get witnesses to testify. 2 The prosecutor implied that Appellant had threatened

the witnesses not to testify in the prior cases, and she argued that this information

was “very relevant” because there were witnesses in the present case who were

scared to testify because they had been threatened.

      There was no record evidence of witness threats in this case, 3 nor was there

any evidence that Appellant was charged with threatening witnesses in the prior

cases. However, it is clear from the trial judge’s comments at the sentencing

hearing that he accepted as true, and based his sentencing decision on, the



2
   The prosecutor identified “three different cases . . . that were dropped because
we were unable to get witnesses to testify.” She stated that one of the cases “was
dropped, nolle 2-R, which is that we can’t find the witnesses . . . we couldn’t get
them to testify or we couldn’t find them,” and the other two cases were dropped
because “the witnesses were not going to testify.” And, when discussing a more
recent case against Appellant that was dropped, the prosecutor stated that the
victim “was very scared,” but she also acknowledged that she had concerns with
the victim’s candor and her ability to prove the case.
3
  The prosecutor stated that “in [the present] case, we had witnesses who were --
and I made it on the record, notified the Court several times at different hearings,
that they were scared to testify, that they had been threatened, and that they did not
want to testify because of actions and threats that were made to them.” However,
the record on appeal does not contain transcripts of the hearings referred to by the
prosecutor.
                                           4
prosecutor’s assertions that Appellant threatened witnesses in this case and her

implied assertions that he had threatened witnesses in prior cases.

      Although it was not necessarily improper for the trial court to consider

Appellant’s prior arrests not resulting in convictions at sentencing,4 it was

improper for the court to base Appellant’s sentence in whole or in part on

uncharged and wholly unsubstantiated allegations of wrongdoing. And because we

are unable to say that the trial court would have imposed the same sentence absent

consideration of the impermissible factors, we are required to reverse and remand

for resentencing before a different judge. See Yisreal v. State, 65 So. 3d 1177,

1178 (Fla. 1st DCA 2011), approved by Norvil v. State, 41 Fla. L. Weekly S190

(Fla. Apr. 28, 2016); Macintosh v. State, 182 So. 3d 888 (Fla. 5th DCA 2016);

Mosely v. State, 40 Fla. L. Weekly D2513 (Fla. 2d DCA Nov. 6, 2015).

      AFFIRMED in part; REVERSED in part; REMANDED for resentencing.

WOLF, WETHERELL, and KELSEY, JJ., CONCUR.




4
  “[A] trial court can consider a defendant’s prior arrests not leading to convictions
for purposes of sentencing so long as the court recognizes that these arrests are not
convictions or findings of guilt, and the defendant is given an opportunity to
explain or offer evidence on the issue of his prior arrests.” Crosby v. State, 429
So. 2d 421, 422 (Fla. 1st DCA 1983).
                                         5
