       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      MARCUS DEONTE STRONG,
                              Appellant,

                                        v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D16-4226

                             [June 20, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Lawrence M. Mirman, Judge; L.T. Case No.
2014001001CFBXMX.

  Carl H. Lida and Joshua H. Lida of Carl H. Lida, P.A., Plantation, for
appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Appellant challenges his sentences imposed after his open plea to the
court, contending that the trial court relied on factors unsupported by the
evidence in the case. The trial judge attributed to the defendant crimes
for which he had not been arrested or charged, nor for which there was
any evidence of his involvement. Consideration of unproven criminal
activity violates due process. We therefore reverse and remand for a new
sentencing hearing.

   Appellant Strong entered an open nolo contendere plea to Count I, third
degree grand theft; Count II, burglary of a dwelling; Count III, possession
of burglary tools; Count IV, burglary of a dwelling. These charges arose
out of two burglaries on Jupiter Island, Florida, on August 4, 2014. In
each of the burglaries, entry was gained by smashing a rear glass door,
and jewelry was taken. Appellant was definitively tied to only one burglary
through DNA evidence on a pillowcase. When officers identified a
suspicious vehicle in the area, an officer was able to stop it on August 7,


                                    1
2014. Appellant and two co-defendants were in the vehicle.

   One co-defendant, Greg Taylor, confessed to the authorities both his
involvement in the Jupiter Island burglaries and his participation in two
other similar burglaries in western Martin County. He told detectives that
appellant was not involved in the western burglaries.

    Appellant pled guilty to the charges. Prior to sentencing, the State
submitted a memorandum to the court outlining the four burglaries. In
it, the State claimed that all of the burglaries qualified as “pillowcase”
burglaries. This is a term used by prosecutors to describe a rash of
burglaries committed in Martin County by residents of Broward County.
The State’s entire presentation at sentencing consisted of evidence
regarding the pillowcase burglaries. A detective testified that the burglars
would use a pillowcase from the burgled home to carry out jewelry and
other items. This detective went to Broward County and found the rental
agency where “they” rented vehicles, without identifying to whom she was
referring. After the arrest of Taylor and appellant, the burglaries stopped.
The detective did not testify as to any specific information tying appellant
to any of these crimes.

   Appellant sought a downward departure from the lowest permissible
sentence of 45.75 months in prison. He was nineteen at the time of the
burglaries and had no criminal record. His mother, sisters, and cousin
testified that he had grown up in a single-parent family and was a good
person. They testified that committing these burglaries was entirely
inconsistent with his character. His mother testified that he had gotten
involved with the wrong set of friends.

    In pronouncing sentence, the court first noted that “sending a message
to the community” was not a proper consideration. After listening to the
argument of counsel and the request for a downward departure, the court
said, “[E]ven if mitigating circumstances may exist, they do not warrant
departure because this is a case that cries out for punishment. It’s a case
that terrorized this community, instilling fear and insecurity in its
residents.” The court then sentenced appellant to a total of twenty-five
years for the charges from the two burglaries, 1 sentencing above even the
state’s recommendation of twenty years. Later, co-defendant Taylor, who

1 Strong was sentenced to five years on Count I the grand theft; fifteen years on
Count II burglary of a dwelling, concurrent with Count I; five years on Count III,
possession of burglary tools; and ten years on Count IV burglary of a dwelling,
concurrent with Count III but consecutive to Counts I and II.


                                        2
was involved with all four burglaries mentioned in the state’s sentencing
memorandum, was sentenced to 10.2 years in prison, largely based upon
his cooperation with the authorities.

   After sentencing, appellant’s counsel filed a timely motion to vacate the
plea based on ineffective assistance of counsel. The trial court denied the
motion. 2 Appellant now appeals his sentence, contending that the trial
court relied on unsubstantiated matters in passing sentence.

    Although a sentence is “generally unassailable” when it is within the
statutory limits, a court violates due process by considering
unsubstantiated matters. See Williams v. State, 193 So. 3d 1017, 1018
(Fla. 1st DCA 2016). Our court has held “that unsubstantiated allegations
of misconduct may not be considered by a trial judge at a criminal
sentencing hearing and to do so violates fundamental due process.” Reese
v. State, 639 So. 2d 1067, 1068 (Fla. 4th DCA 1994) (emphasis added). In
Hillary v. State, 232 So. 3d 3, 4 (Fla. 4th DCA 2017) (quoting Fernandez v.
State, 212 So. 3d 494, 496 (Fla. 2d DCA 2017)), we also held, “‘[A] trial
court’s consideration of a constitutionally impermissible sentencing factor
is a fundamental error in the sentencing process’ which is reviewable for
the first time on direct appeal.”

   Recently, in Norvil v. State, 191 So. 3d 406 (Fla. 2016), our supreme
court held that a court may not consider matters outside the provisions of


2 The dissent contends that the appeal is untimely filed. The motion to vacate
the plea was filed within thirty days of the sentence imposed, making it timely
under Florida Rule of Criminal Procedure 3.170(l) and postponing rendition for
purposes of appeal. See Fla. R. App. P. 9.020(i)(1). Although the motion was
styled Motion to Vacate Plea Based upon Ineffective Assistance of Counsel 3.850,
the ground was misadvice of counsel. In substance, it was a motion pursuant to
the Rule, not a postconviction ineffective assistance claim. In any event, the court
erred in failing to treat it as a Rule 3.170(l) motion. See Applegate v. State, 23
So. 3d 211, 212 (Fla. 2d DCA 2009). Further, a timely filed motion to vacate the
plea defers rendition of the sentencing judgment. See Wilson v. State, 128 So. 3d
898, 899 (Fla. 4th DCA 2013). It would be ineffective assistance on the face of
the record for appellant’s attorney to have filed a postconviction motion and thus
cut off the appellant’s right to appeal his sentence. The appeal was timely from
the denial of the motion by the trial court. Furthermore, the State never argued
in its brief or by motion to dismiss that the appeal was untimely. While
jurisdiction cannot be conferred on the court simply by failing to object to an
untimely appeal, this court determines its own jurisdiction, and we conclude that
the timely filed motion should be treated as a Rule 3.107(l) motion, making the
appeal timely.


                                         3
the Criminal Punishment Code in sentencing a defendant. 3 In Norvil, the
court considered an arrest subsequent to the charged crime. Id. at 407.
The court explained that a subsequent arrest was not listed as a factor for
consideration under the CPC or in the presentence investigation report,
and thus, could not be considered in sentencing. Id. at 409-10.

    The trial court violated constitutional due process by considering
unsubstantiated allegations of misconduct in this case. The State
presented substantial evidence regarding other “pillowcase” burglaries
without ever tying them in any way to appellant, who was charged with
only two burglaries on one day. There was no evidence that appellant had
any participation with any other burglaries. Nevertheless, the trial court
found that this case “terrorized a community” without any evidence to
support that these two burglaries, committed on the same day, had that
effect on the community. Instead, it is apparent that the court connected
appellant with all the pillowcase burglaries and sentenced him in
consideration of the effect that they had on the community.

   Moreover, these other burglaries, for which there was no evidence of
appellant’s involvement, are not within the factors which a court may
consider under the CPC. Those factors which the court may consider
under Norvil are limited to the defendant’s involvement in the current
charges or the defendant’s prior arrests or convictions, not the charges
against other persons with whom the defendant may or may not have been
associated. “[U]nsubstantiated allegations of misconduct or speculation
that the defendant probably committed other crimes may not be relied
upon by a trial court in imposing sentence.” Nusspickel v. State, 966 So.
2d 441, 445 (Fla. 2d DCA 2007).

   It is the State’s burden to show that the trial court did not rely on
impermissible factors in sentencing. See Norvil, 191 So. 3d at 409. In
Mosley v. State, 198 So. 3d 58, 60 (Fla. 2d DCA 2015) (alteration added),
the court further explained what the State must show:




3  The State cites to Imbert v. State, 154 So. 3d 1174 (Fla. 4th DCA 2015), as
authority for consideration of uncharged crimes. Imbert relied on this court’s
decision in Norvil v. State, 162 So. 3d 3 (Fla. 4th DCA 2014). However, Norvil was
quashed by the supreme court in Norvil v. State, 191 So. 3d 406 (Fla. 2016).
Moreover, in Imbert, the uncharged conduct considered by the trial court was
directly tied to the defendant. In this case, the uncharged conduct was never
directly tied to the appellant.


                                        4
      The State bears the burden to show from the record as a whole
      that the trial court did not consider impermissible factors in
      rendering its sentence. [citation omitted] We must examine
      the record to determine whether it “may reasonably be read to
      suggest” that a defendant's sentence was the result, at least
      in part, of the consideration of impermissible factors. See
      Moorer v. State, 926 So. 2d 475, 477 (Fla. 1st DCA 2006).

   The State has failed to carry its burden. When the record as a whole is
considered, there is more than enough to reasonably suggest that the
court relied on impermissible factors in sentencing appellant.

   Because the court considered unsubstantiated matters in sentencing
appellant, the court committed fundamental error. We reverse and
remand for sentencing by a different judge.

GROSS, J., concurs.
LEVINE, J., dissents with opinion.

LEVINE, J., dissenting.

   I dissent for several reasons. Initially, this court lacks jurisdiction
because the appeal was untimely. The trial court entered its sentence on
September 29, 2016. Appellant did not file a notice of appeal until
December 14, 2016, well past the thirty day time limit for filing an appeal.
See Fla. R. App. P. 9.110(b).

    Appellant filed three motions after sentencing, none of which
suspended rendition of the judgment and sentence from September 29,
2016. First, he filed a “Motion to Vacate Plea Based on Ineffective
Assistance of Counsel 3.850,” which the trial court dismissed without
prejudice because there was no oath or affidavit. Second, appellant filed
a pro se motion to clarify and correct sentence, which the trial court struck
because appellant was represented by counsel. Third, appellant filed a
rule 3.800(c) motion to mitigate sentence, but no ruling on that motion
appears in the record. 4 None of these motions tolled the time for filing an
appeal. See Fla. R. App. P. 9.020(i)(1) (identifying the types of motions that
toll rendition of a final order). The notice of appeal cites the order
dismissing the motion to vacate as the order being appealed. However,
that order explicitly stated that it was a non-final, non-appealable order.

4 According to the lower court docket, the trial court dismissed the motion

because of appellant’s pending appeal.


                                      5
    The majority treats the motion to vacate as a rule 3.170(l) motion to
withdraw plea, since a rule 3.170(l) motion, unlike a rule 3.850 motion,
tolls rendition of the judgment and sentence until disposition of the
motion. See Fla. R. App. P. 9.020(i)(1). Without considering the motion
as a rule 3.170(l) motion, this court would be without jurisdiction.
However, there is no basis to treat the rule 3.850 motion as a rule 3.170(l)
motion. The motion cites rule 3.850 in its title, and the substance of the
motion refers to Strickland and the alleged ineffective assistance of
counsel. The trial court dismissed the motion without prejudice because
a rule 3.850 motion requires an oath or affidavit. Appellant did not object
or ask the trial court to treat the motion as a rule 3.170(l) motion.
Appellant, the state, and the trial court all understood the motion to be
filed under rule 3.850, not rule 3.170(l). Even on appeal, appellant does
not suggest the motion was, in fact, a rule 3.170(l) motion.

    The majority states that “[i]t would be ineffective assistance on the face
of the record for appellant’s attorney to have filed a postconviction motion.”
While that eventually could turn out to be true, that does not transform
the motion that was filed into a rule 3.170(l) motion so as to confer
jurisdiction. Although the state does not argue that the appeal was
untimely, it is the duty of this court—and not the state—to determine
jurisdiction. Neither the court nor the parties can create jurisdiction
where it does not exist. See City of W. Palm Beach v. Palm Beach Cty. Police
Benev. Ass’n, 387 So. 2d 533, 534 (Fla. 4th DCA 1980) (recognizing that
jurisdiction cannot be conferred by the failure to object); W. 132 Feet v.
City of Orlando, 86 So. 197, 198-99 (Fla. 1920) (“Courts are bound to take
notice of the limits of their authority and if want of jurisdiction appears at
any stage of the proceedings, original or appellate, the court should notice
the defect and enter an appropriate order.”).

   I further dissent on the merits. Because appellant did not preserve the
sentencing issue by raising a contemporaneous objection in the trial court,
this court may consider the error only if it is fundamental. Jackson v.
State, 983 So. 2d 562, 574 (Fla. 2008). No fundamental error occurred
below because the trial court did not consider any constitutionally
impermissible sentencing factors.

   As the majority recognizes, a sentence is “generally unassailable” when,
as here, it is within the statutory limits. Williams v. State, 193 So. 3d
1017, 1018 (Fla. 1st DCA 2016). An exception to this rule exists only
where the imposition of sentence violates a defendant’s constitutional
rights.


                                      6
      Examples of such violations are: (1) when a sentencing court
      relies upon conduct for which a defendant has been acquitted,
      (2) where a judge imposes a sentence based on the race,
      religion, political affiliation, or national origin of the
      defendant, (3) where a judge takes his own religious beliefs
      into account in sentencing, (4) where a judge improperly
      considers a defendant’s lack of remorse or failure to accept
      responsibility, or (5) where a sentence is the product of judicial
      vindictiveness.

Alfonso–Roche v. State, 199 So. 3d 941, 949-50 (Fla. 4th DCA 2016)
(Gross, J., concurring) (citations omitted).

   While it is true that the consideration of constitutionally impermissible
factors is fundamental error, the majority fails to show where the trial
court considered any constitutionally impermissible factors such as
unsubstantiated allegations of misconduct. See Reese v. State, 639 So. 2d
1067, 1068 (Fla. 4th DCA 1994) (holding that unsubstantiated allegations
of misconduct may not be considered at sentencing).

   To the contrary, the record affirmatively shows that the trial court
considered only the two burglaries to which appellant pled. At the
conclusion of the state’s argument at the sentencing hearing, the trial
court even sought clarification as to the burglaries in which appellant was
involved:

          THE COURT: Before we get to the Defendant[’s] argument,
      the argument as far as sending a message to the community,
      I can no longer, that’s not a proper consideration for me, uh,
      at this juncture under the law. So, I’m going to strike that.

         But before we get to the Defendant[’s] argument, uh, let me
      think if I had any other questions based on what I reviewed.
      The—what about just so you could, uh, address the relative
      culpability or the involvement of the defendant. I—I remember
      about the third person, but between the two defendants
      here—

         [PROSECUTOR]: Right.

         THE COURT: —you know?




                                      7
          [PROSECUTOR]: There were four homes. He was involved
      in two of the homes on Jupiter Island.

         Uh, and as far as the culpability there was other physical
      evidence found in both of the homes that linked him to—while
      there’s physical evidence found in the one home, the DNA, uh,
      linking him to it. As far as what he did in the home, uh, we
      don’t have specific information because he didn’t cooperate
      with us, so I can’t comment on that.

         As far as the other home when they were stopped in the
      vehicle, uh, they—there was evidence from the other home
      found that had been taken of, uh, personalized coins, uh, from
      the victim’s husband who was with the (indiscernible) as well
      as burglary tools that, when processed, matched, uh,
      markings from the home.

         Uh, so I can, as far as his involvement, I don’t—he didn’t
      cooperate.

         THE COURT: Is there any suggestion in the facts or that
      you know of that one dominated the other?

         [PROSECUTOR]: Out of the two?

         THE COURT: Yes.

         [PROSECUTOR]: No.

(emphasis added). Thus, based on the state’s own representation, the
court was keenly aware that appellant was involved in only two burglaries.
As such, the majority is incorrect in stating that “it is apparent that the
court connected appellant with all the pillowcase burglaries.”

   The majority notes that appellant’s sentence was greater than the
state’s recommended sentence and that a co-defendant received a lesser
sentence. However, these factors do not change the fact that appellant’s
sentence was legal as it fell within the statutory limits under the Criminal
Punishment Code. Additionally, a trial court is not bound by the
sentencing recommendation of a state attorney. State v. Adams, 342 So.
2d 818, 819-20 (Fla. 1977). That a co-defendant received a lesser sentence
also does not demonstrate fundamental error because the co-defendant’s
sentence was the result of a plea and, as the majority acknowledges, was


                                     8
“largely based upon his cooperation with the authorities.”

   The majority states that “[t]he State’s entire presentation at sentencing
consisted of evidence regarding the pillowcase burglaries.” In fact, the
state merely presented evidence of the entire criminal enterprise of
appellant and his co-defendants. This evidence consisted of the testimony
of a detective as well as the submission by the state of a sentencing
memorandum and attachments—including the arrest affidavit, crime lab
reports, and cell site records—detailing the criminal actions conducted by
appellant and the co-defendants. It would be unreasonable to say that a
court cannot even hear such evidence to place the defendant’s conduct
into context within the entire criminal enterprise.

   The memorandum and attachments recounted that four burglaries
occurred during a week-and-a-half timeframe, including two burglaries on
July 26 in Indiantown and Stuart and two burglaries on August 4 in
Jupiter Island. In all four burglaries, the suspects broke a rear glass door
and took jewelry and other items. Blood found on a pillowcase in one of
the homes burglarized on August 4 matched appellant’s DNA. Three days
after the August 4 burglaries, an officer conducted a traffic stop on a
vehicle driven by appellant in which the two co-defendants were
passengers. The vehicle had been seen in Jupiter Island around the time
of the August 4 burglaries. Inside the vehicle, detectives found stolen
items from one of the burglarized Jupiter Island homes. The detectives
also found a crowbar with paint matching pry marks from the second
burglarized Jupiter Island home. Cell site information placed appellant
and the two co-defendants on or near Jupiter Island around the time of
the August 4 burglaries. Appellant was charged with and pled to the
August 4 Jupiter Island burglaries. One of the co-defendants pled to all
four burglaries.

    The majority makes much of the fact that the sentencing memorandum
addressed all four burglaries. However, this memorandum was directed
to both appellant and a co-defendant. The memorandum made clear that
appellant was charged with only two of the burglaries, while the co-
defendant was charged with all four. Although the majority states that
“[t]he detective did not testify as to any specific information tying appellant
to any of these crimes,” the sentencing memorandum and attachments
tied appellant to the two burglaries. Additionally, by entering the plea to
the two burglary charges, appellant admitted that there was a factual basis
for the charges against him.




                                      9
    Significantly, the trial court did not make any statements indicating
that its sentence was motivated by an improper factor, including
“consideration of unproven criminal activity.” The fact that the state
referenced the July 26 “pillowcase burglaries” does not in any way suggest
the trial court adopted such reasoning as its own, especially where the
trial court did not make any statements indicating agreement with such
arguments. In fact, the trial court did not make any reference whatsoever
to the July 26 burglaries. See Charles v. State, 204 So. 3d 63, 66-67 (Fla.
4th DCA 2016) (affirming where, after the state urged the court to “send a
message,” the court imposed the maximum sentence without any
comment or elaboration); Barlow v. State, 238 So. 3d 416, 417 (Fla. 1st
DCA 2018) (affirming where there was no indication that the trial court
based its sentence on testimony regarding uncharged conduct).

    “[T]rial judges are routinely made aware of information which may not
be properly considered in determining a cause. Our judicial system is
dependent upon the ability of trial judges to disregard improper
information and to adhere to the requirements of the law in deciding a case
or in imposing a sentence.” Harvard v. State, 414 So. 2d 1032, 1034 (Fla.
1982). Where there is no evidence in the record that the sentencing court
relied upon an allegedly improper argument by the state, this court will
not speculate and infer impropriety. See Charles, 204 So. 3d at 66. There
is no case law to support the proposition that even if there was improper
argument by the state—which the record does not show—that such
improper argument by the state, without adoption by the trial court, in
and of itself creates fundamental error.

   The majority states that “the trial court found that this case ‘terrorized
a community’ without any evidence to support that these two burglaries,
committed on the same day, had that effect on the community.” The trial
court could find that the crimes potentially affected the greater community
beyond the two victims in this case based on appellant’s admission and
plea. Would the majority require the state to introduce testimony from the
victims’ neighbors to prove the effect of these two burglaries on the
community? Common sense dictates not. 5 Unless the legislature creates
a calculus to determine how many burglaries create “terror” in a
community or we ask judges to remove this word from their vocabulary,
then the trial court should be permitted to use this language to
characterize these two burglaries while imposing a sentence within the
legal statutory limits. At best, the trial court’s comment characterizes the

5Additionally, this sort of testimony may be irrelevant and thus inadmissible.
See § 90.402, Fla. Stat.


                                     10
gravity of the two burglaries—to which appellant pled—on the community.
At worst, this “stray remark” does not reflect an underlying improper
sentencing rationale. See Oyola v. State, 158 So. 3d 504, 509 (Fla. 2015)
(“We have affirmed sentencing orders when the inappropriate language is
confined to a stray remark that does not reflect an underlying improper
sentencing rationale.”) (emphasis added).

   It is not reasonable to infer from the trial court’s isolated comment that
the trial court considered all four burglaries in sentencing appellant.
There is no reason to doubt that the trial court earnestly believed that the
two particular burglaries charged to appellant constituted “terrorizing the
community.” Although this type of comment may be considered by some
observers as being somewhat overstated, it simply is not the type of
language that requires a reversal or resentencing.

    This case is unlike Reese, 639 So. 2d 1067, upon which the majority
relies. In that case, the prosecutor argued during sentencing that the
defendant appeared in other drug sting operation videos and was a
principal in other cases. Despite the defense’s objection, the trial court
stated that it would consider the state’s argument for sentencing purposes.
This court reversed, holding that the trial court could not consider
unsubstantiated allegations of misconduct. In contrast with Reese, here
appellant did not object to the state’s arguments, and the trial court never
gave any indication that it would actually consider any unsubstantiated
allegations of misconduct.

    The facts of this case are actually contrary to the facts in those cases
which have resulted in reversal based on a trial court’s comments during
sentencing. Before pronouncing its sentence, the trial court did not make
comments suggesting it accepted the state’s arguments of uncharged
crimes as true. Rather, the trial court focused its inquiry on the particular
burglaries with which appellant was actually charged. Cf. Norvil v. State,
191 So. 3d 406 (Fla. 2016) (reversing where, immediately before
pronouncing sentence, trial court emphasized and relied upon a
subsequent arrest and pending charge); Hillary v. State, 232 So. 3d 3 (Fla.
4th DCA 2017) (reversing where trial court, by its own admission,
considered defendant’s subsequent arrest without conviction when
sentencing defendant for the primary offenses); Williams v. State, 193 So.
3d 1017, 1019 (Fla. 1st DCA 2016) (reversing where “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 prosecutor’s assertions” of
unsubstantiated conduct); Drinkard v. State, 177 So. 3d 993 (Fla. 1st DCA
2015) (reversing where, at sentencing, trial court repeatedly referred to the


                                     11
state’s evidence that appellant had been racing on a highway, conduct for
which appellant had been acquitted); Yisrael v. State, 65 So. 3d 1177 (Fla.
1st DCA 2011) (reversing where court questioned defendant about
dismissed and pending charges shortly before imposing maximum
allowable sentence).

    The majority argues that the state did not meet its burden of showing
that the trial court did not rely on impermissible factors in sentencing.
However, both of the cases the majority relies on—Norvil and Mosley v.
State, 198 So. 3d 58 (Fla. 2d DCA 2015)—involved preserved error and not
fundamental error. The fundamental error “standard imposes a high
burden on the defendant to establish that the error ‘goes to the foundation
of the case or the merits of the cause of action and is equivalent to a denial
of due process.’” Abdool v. State, 53 So. 3d 208, 220 (Fla. 2010) (emphasis
added) (quoting Bailey v. State, 998 So. 2d 545, 554 (Fla. 2008)). Appellant
has not met his burden.

    In conclusion, there is no fundamental error requiring a reversal and
resentencing. Nothing in the record shows that the trial court relied on
“unproven criminal activity” to violate due process. Due process means
the right to a fair sentencing process. United States, ex rel. Welch v. Lane,
738 F.2d 863, 864-65 (7th Cir. 1984). Due process does not require
reversal of appellant’s sentence based on the facts of this case. Therefore,
I dissent.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     12
