               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT

ROBERT ANDERSON SMITH,                     )
                                           )
             Appellant,                    )
                                           )
v.                                         )       Case No. 2D15-1691
                                           )
STATE OF FLORIDA,                          )
                                           )
             Appellee.                     )
                                           )

Opinion filed November 18, 2016.

Appeal from the Circuit Court for
Highlands County; Anthony L. Ritenour,
Judge.

Howard L. Dimmig, II, Public Defender,
and Tosha Cohen, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Marilyn Muir Beccue,
Assistant Attorney General, Tampa for
Appellee.


CRENSHAW, Judge.

             Robert Smith appeals the sentence imposed on his conviction for felony

battery. Because the trial court committed fundamental error when it departed from its
neutral role during Smith's sentencing, we reverse and remand for resentencing before

a new judge.1

                 A jury found Smith guilty of felony battery based on a prior battery

conviction but acquitted him of several other charges all stemming from a physical

altercation with the victim, his then-girlfriend. Smith scored nine points on his

scoresheet, placing him in the range for a mandatory nonstate prison sanction unless

the trial court found him to be a danger to the public. See § 775.082(10), Fla. Stat.

(2013). At his sentencing hearing the trial court found that Smith was a danger to the

public based on Smith's pattern of domestic abuse towards women and sentenced him

to five years' imprisonment. The written findings in the trial court's order include: (1)

"[t]wo former women placed injunctions on [Smith]"; (2) "[p]rior women have been

subjected to [Smith's] violence"; (3) "[t]hese previous women describe similar scenarios

of violence as the Victim, to include young children being witness to violence"; (4)

"[Smith] appears to have the same [ongoing] problem of violence with each

relationship."

                 While a trial court may ask relevant questions of witnesses at a hearing,

the court commits fundamental error when it assumes the role of prosecutor and

introduces its own evidence. See Padalla v. State, 895 So. 2d 1251, 1252 (Fla. 2d DCA

2005) ("In the present case, the trial court assumed the role of the prosecutor and, in so

doing, committed fundamental error."); Cagle v. State, 821 So. 2d 443, 444 (Fla. 2d

DCA 2002) (holding that the trial court committed fundamental error by calling and




                 1
              In light of our reversal, Smith's arguments regarding improperly assessed
fines and costs are moot.


                                              -2-
examining its own witness at defendant's revocation of probation hearing); Edwards v.

State, 807 So. 2d 762, 763 (Fla. 2d DCA 2002) ("The trial court called and did all of the

questioning of the two State witnesses, a probation officer and a police officer, turning

the witnesses over to the defense for cross-examination."); Lyles v. State, 742 So. 2d

842, 843 (Fla. 2d DCA 1999) ("Whether intentional or not, the trial judge gave the

appearance of partiality by taking sua sponte actions which benefitted the State.").

              The State had no intention of calling any witnesses other than the victim at

the sentencing hearing:

                     THE COURT: State, are you wanting other people
              here for sentencing?
                     [STATE]: No, Your Honor, just the victim would like to
              speak.
                     THE COURT: Okay. So you're ready to proceed to
              sentencing right now?
                     [STATE]: Yes, Your Honor.

During the State's direct examination of the victim, she mentioned: "I'm not the only

woman he's done this to. I'm just the only one who didn't drop the charges, because

they were scared." At this point, the trial court interrupted the State's direct examination

to ask the victim whether the other women she mentioned had obtained injunctions

against Smith; the victim informed the court that they did.

              The trial court then proceeded to conduct its own examination of the victim

while simultaneously looking for the injunctions she mentioned. Apparently the court

"pulled up a prior domestic" involving Smith and one of the other women mentioned by

the victim. The court continued its examination of the victim and eventually turned the




                                            -3-
witness back over to the lawyers who each indicated they had no questions.2 The State

again informed the court that it did not have anyone else to call.

              Defense counsel then called Smith's mother and grandmother to testify on

his behalf. Through the mother's testimony the trial court learned that one of the other

women mentioned by the victim worked at the courthouse and asked the bailiff to

retrieve her. Also during the mother's testimony defense counsel advised the court that

Smith's battery of that other woman was the prior battery on his scoresheet which

qualified Smith for felony battery in this case. Once the defense witnesses were

finished, Smith indicated he did not wish to address the court.

              The trial court then called the other woman—who had been working

elsewhere in the courthouse—as its own witness. The court itself conducted the entire

direct examination of the other woman during which it learned about how she pressed

and later dropped charges against Smith for multiple beatings, specifics regarding the

prior battery conviction that appeared on Smith's scoresheet, and the fact that she has a

permanent injunction against Smith on behalf of her and her son—a child she had with




              2
                Before the trial court turned the witness back over to the lawyers, the
following exchange occurred between the court and the State:
                       THE COURT: What was the State's reason in not
               trying to bring in priors?
                       [STATE]: We're not allowed to.
                       THE COURT: We'll discuss it later.
Smith also argues that this amounts to impermissible coaching thus further
compounding the trial court's error in departing from neutrality. See Chastine v.
Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993) ("Obviously, the trial judge serves as
the neutral arbiter in the proceedings and must not enter the fray by giving 'tips' to either
side."); see also Lee v. State, 789 So. 2d 1105, 1107 (Fla. 4th DCA 2001). In light of
the other improper actions of the trial court we do not address whether this comment
alone amounted to an improper departure from neutrality.


                                            -4-
Smith. Defense counsel did not object at any point during this examination. The trial

court offered to let the lawyers ask questions of the witness but both declined to do so.3

              The parties then gave their closing arguments, after which the court

recalled the other woman and continued to question her regarding the specifics of

Smith's alleged prior attacks. When the court finished its second examination of its own

witness, the State again indicated it had no questions for the witness.

              At the conclusion of the hearing the trial court found Smith to be a danger

to the public, pronouncing the basis for its finding as follows:

              My sentence is based on what I have heard from the victim
              in this case, and as well as looking up -- we've had prior
              victims of women, and it appears that you just think this is
              the way life should be.
                      ....
                      I found him a threat to society based on the prior
              injunctions, the prior women, including scenarios that look
              like the same problem going on and on. That's it.

              Although defense counsel did not object to the trial court's improper

actions in this case, the court's conduct in this case amounts to fundamental error. See

Cagle, 821 So. 2d at 444. We recognize that "not every act of judicial impartiality will

qualify as fundamental error." Williams v. State, 901 So. 2d 357, 359 n.3 (Fla. 2d DCA

2005) (citing Mathew v. State, 837 So. 2d 1167, 1170 (Fla. 4th DCA 2003)). But here,

the trial court called its own fact witness who provided a substantial portion of the

testimony against Smith. And the trial court specifically indicated that its ruling was

based on the testimony of its own witness. Thus, the trial court assumed the role of the

prosecutor and committed fundamental error by "depriv[ing] the defendant of the fair


              3
                After the witness stepped down, the State informed the trial court that the
other woman mentioned by the victim was twenty-five minutes away and willing to
testify. The trial court informed the State that this was "not needed."


                                            -5-
and impartial tribunal which is the cornerstone of due process." Cagle, 821 So. 2d at

444. The State argues that "the court properly sought the information necessary to

decide whether or not [Smith] was a danger to society, as was required by [section

775.082]." However, nothing in section 775.082 authorizes the trial court to step into

the role of the prosecutor during sentencing. Accordingly, we must reverse Smith's

sentence and remand for resentencing before a different judge. See Edwards, 807 So.

2d at 764.

             Reversed and remanded for resentencing.

SILBERMAN and BADALAMENTI, JJ., Concur.




                                          -6-
