       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      ROBERT EDWARD TAYLOR,
                             Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-2439

                           [February 20, 2019]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Steven J. Levin, Judge; L.T. Case No. 562016CF001042A.

  Carey Haughwout, Public Defender, and Christine Geraghty, Assistant
Public Defender, West Palm Beach, for appellant.

  Ashley B. Moody, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, C.J.

    The defendant appeals from his sentence for aggravated assault with a
deadly weapon following his no contest plea. The defendant argues that
the circuit court erred by accepting the victim’s unsworn statement at
sentencing in violation of section 921.143(1), Florida Statutes (2018). We
affirm, because the defendant did not preserve this argument for review,
and fundamental error did not occur.

   We present this opinion in three sections:
   1. The sentencing hearing;
   2. The parties’ arguments on appeal; and
   3. Our review.

                      1. The Sentencing Hearing

    At sentencing, during the state’s presentation, the prosecutor explained
that the victim, who was in the courtroom, felt emotionally unable to
verbally address the court. In lieu of the victim’s testimony, the state
offered the victim’s unsworn written statement and other documents.
   In response, defense counsel stated, “I have no objection to most of [the
documents], Your Honor, I would like to cross-examine the victim cause
there are some statements in his letter that – [.]” The circuit court
interrupted defense counsel, and stated, “Well, if he doesn’t want to testify,
he doesn’t have to, I’ll read the letter and I’ll take it for what it’s worth at
that point.” At that point, the circuit court apparently realized that it
should ask for the defense’s position on whether the court should review
the state’s documents, including the victim’s unsworn written statement.
The circuit court asked, “Well, legally, though, I can review them; correct?”
and defense counsel responded, “Yes, Your Honor, review them.”

    The victim asked the prosecutor to read the unsworn statement into
the record. The victim’s unsworn statement detailed his injuries, his
difficult recovery, and his significantly diminished quality of life after the
attack. The victim explained that, among other things, he experienced
severe pain, was required to wear a neck collar, and had been bedridden
for nine months. He stated that he could no longer eat without pain or
enjoy outdoor family activities and other social functions.

   Next, the prosecutor called the victim’s wife, who also was present in
the courtroom, to read her unsworn written statement. The defense did
not object. The wife’s unsworn statement detailed the attack’s aftermath
and the victim’s deteriorating condition. Unlike the victim, though, the
victim’s wife was cross-examined by defense counsel. The wife admitted
that the victim had a neck injury before the assault. However, she
explained that the assault aggravated the victim’s preexisting injury.

   Defense counsel argued, among other things, that given the victim’s
preexisting injuries, the defendant could not be blamed for the victim’s
current medical problems. Defense counsel also stated that the defendant
was willing to complete probation as part of his sentence and asked the
circuit court to consider supervision in lieu of additional incarceration.

   In contrast, the state asked for the maximum five-year prison sentence.

   In a lengthy oral pronouncement, the circuit court accepted the
defendant’s argument that the victim had a preexisting neck injury.
However, the circuit court found that the defendant assumed the risk of
the victim’s condition when he attacked the victim. Ultimately, the circuit
court sentenced the defendant to three years in prison, with credit for
time-served, followed by house arrest for one year, then probation for one
year. The circuit court explained that such a sentence would protect the
victim from future contact with the defendant.

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                 2. The Parties’ Arguments on Appeal

   This appeal followed. The defendant argues that the circuit court erred
by accepting the victim’s unsworn statement at sentencing in violation of
section 921.143(1), Florida Statutes (2018). Section 921.143(1) states, in
pertinent part:

      At the sentencing hearing, and prior to the imposition of
      sentence upon any defendant . . . the sentencing court shall
      permit the victim of the crime for which the defendant is being
      sentenced . . . to:

      (a) Appear before the sentencing court for the purpose of
      making a statement under oath for the record; and

      (b) Submit a written statement under oath to the office of the
      state attorney, which statement shall be filed with the
      sentencing court.

   The state responds that the defendant did not preserve this argument
for review because, at sentencing, the defense did not object to the
admission of the victim’s unsworn statement. Instead, the defense merely
asked to cross-examine the victim about the statement, and then
ultimately agreed that the circuit court could review the statement.

                             3. Our Review

   We agree with the state that the defendant did not preserve this
argument for review. Even if we were to treat defense counsel’s request to
cross-examine the victim as an objection, that objection is different than
the ground upon which the defendant’s appeal is based. See Rodriguez v.
State, 609 So. 2d 493, 499 (Fla. 1992) (“It is well settled that the specific
legal ground upon which a claim is based must be raised at trial and a
claim different than that raised below will not be heard on appeal.”).

   The defendant, anticipating the state’s lack of preservation claim,
argues as a fallback position that even if the ground now raised on appeal
was not properly raised below, we should hold that the circuit court’s
acceptance of the victim’s unsworn statement at sentencing rises to the
level of fundamental error.

   We decline to hold that fundamental error occurred in this case. It is
debatable whether a court’s acceptance of an unsworn victim statement is

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error at all, based on a conflict which exists between the First District and
Second District on this issue. We will address that conflict in detail.

    The First District, in Patterson v. State, 994 So. 2d 428 (Fla. 1st DCA
2008), held that a court’s acceptance of a victim’s unsworn statement is
error. There, the defendant appealed an order summarily denying his
motion for postconviction relief. Id. at 429. He argued his counsel was
ineffective when, at sentencing, counsel failed to object to the state’s
reliance upon an unsworn letter from a victim’s family member. Id. The
First District reversed for an evidentiary hearing, reasoning:

      [S]ection 921.143, Florida Statutes, requires that the victim
      or family member either appear before the sentencing court
      under oath or submit a written statement under oath to the
      state attorney, neither of which occurred in this case.
      Furthermore, it is apparent that the sentencing judge relied
      on the erroneously admitted evidence when imposing
      appellant’s sentence.

Id.

    More recently, the Second District certified conflict with Patterson in
Dickie v. State, 216 So. 3d 35 (Fla. 2d DCA 2017). In Dickie, the Second
District concluded that the circuit court did not abuse its discretion when
it considered several unsworn victim impact statements at sentencing. Id.
at 39. The Second District reasoned:

      The plain language of section 921.143(1) does nothing to
      restrict the type of information that a court may consider
      when fashioning a criminal defendant’s sentence. In pertinent
      part, section 921.143(1)(a)-(b) provides that a sentencing
      court “shall permit the victim of [a] crime” to “[a]ppear before
      the sentencing court for the purpose of making a statement
      under oath for the record” and “[s]ubmit a written statement
      under oath to the office of the state attorney.” (Emphasis
      added.) The statute’s plain language says nothing about what
      a sentencing court shall not permit, and courts have declined
      to read such restrictive verbiage into the statute.

      We conclude that section 921.143(1) was meant to create a
      narrow class of victim impact statements which the trial
      court shall permit to be heard prior to imposing a sentence.
      That is, the legislature mandated that the trial courts permit
      all victims of crimes the opportunity to be heard prior to the

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imposition of a criminal sentence, so long as the victims’
statements were made under oath. In so doing, the legislature
did not sub silentio create a new sentencing doctrine
precluding trial courts from considering unsworn victim
impact statements in fashioning a criminal sentence. The trial
court must be permitted to consider, and afford the
appropriate weight to, any constitutionally and statutorily
permissible information that reasonably might bear on the
proper sentence for a particular defendant.

The sole judicial opinion construing section 921.143(1) as a
barrier to the admissibility of unsworn victim impact
statements is Patterson, 994 So. 2d at 429. The defendant in
Patterson appealed from a summary denial of a motion for
postconviction relief. Id. The First District affirmed the trial
court’s summary denial of all the defendant’s postconviction
issues, save for one; the defendant claimed his trial counsel
was ineffective for failing to object to a letter from the victim’s
brother which was not authenticated, handwritten, or signed.
Id. In remanding for an evidentiary hearing on this ground,
the First District read section 921.143(1) as a statute which
“requires that the victim or family member either appear
before the sentencing court under oath or submit a written
statement under oath to the state attorney, neither of which
occurred.”    Accordingly, the First District reversed the
summary denial of this single issue.

The Patterson court’s construction of section 921.143(1) is
unsupportable by the statute’s text. The plain language of
section 921.143(1) does not impose any “requirement” on
victims or their families. In fact, the word “require” does not
appear in the statute at all. The only constraint section
921.143(1) creates is on trial courts, to the extent that the trial
courts “shall permit” victims the opportunity to be heard so
long as those victims make their statements under oath. The
Patterson court’s interpretation of section 921.143(1) as
“requiring” that only sworn statements of victims be
considered by the trial courts markedly changes the meaning
of the statute, encroaches on the legislature’s role to write the
laws of our state, and therefore contravenes bedrock
principles of separation of powers. . . .

We disagree with Patterson and the proposition that unsworn
victim impact statements are per se inadmissible at

                                5
      sentencing hearings. Trial courts have the discretion to
      consider such statements, just as they did before passage of
      section 921.143(1). . . .

Id. at 37-39 (emphasis in original; footnotes and citations omitted).

   Here, because the defendant did not preserve the argument that a
court’s consideration of an unsworn victim statement is error, we need not
decide whether we are persuaded by the First District’s or the Second
District’s reasoning on this issue.

   However, on the defendant’s fallback fundamental error argument, we
hold that no fundamental error occurred. The First District, in Baugh v.
State, 253 So. 3d 761 (Fla. 1st DCA 2018), recently held that a court’s
acceptance of a victim’s unsworn statement does not necessarily rise to
the level of fundamental error. The First District reasoned:

      Based on Patterson, the trial court erred in accepting the
      victim’s unsworn statement in this case. However, the error
      did not rise to the level of fundamental error. Unlike the facts
      in Patterson, it is not apparent from the record that the court
      relied on the victim’s unsworn statement in sentencing [the
      defendant] to twenty years in prison, rather than the fifteen
      years mandated by the PRR statute. The State did not argue
      for an enhanced sentence based on the victim’s statement, nor
      did the court give any indication that it was influenced by the
      statement. Additionally, the twenty-year sentence was well
      within the court’s discretion to impose and far less than the
      maximum of thirty years allowed by the sentencing statute
      and recommended by the victim.

Id. at 765.

    As in Baugh, we hold in this case that any error did not rise to the level
of fundamental error. Here, it is not apparent from the record that the
circuit court relied on the victim’s unsworn statement in sentencing the
defendant to prison, rather than to probation as the defendant requested.
The circuit court just as easily could have relied on victim’s wife’s
testimony at the sentencing hearing, which also discussed the victim’s
injuries and trauma from the assault. Or the trial court could have relied
upon the very violent nature of the assault itself. Additionally, the three-
year sentence was well within the court’s discretion to impose and less
than the maximum of five years allowed by statute and recommended by
the state.

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   Based on the foregoing, we affirm the defendant’s sentence.

   Affirmed.

CIKLIN and KUNTZ, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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