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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



GERARDO SANCHEZ, SR.,                        )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D17-258
                                             )
STATE OF FLORIDA,                            )
                                             )
             Appellee.                       )
                                             )

Opinion filed May 3, 2019.

Appeal from the Circuit Court for Polk
County; John K. Stargel, Judge.

Howard L. Dimmig, II, Public Defender, and
Cynthia J. Dodge, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Helene S. Parnes,
Assistant Attorney General, Tampa, for
Appellee.


VILLANTI, Judge.


             Gerardo Sanchez, Sr., appeals his convictions and sentences for one

count of burglary of a structure, one count of possession of burglary tools, one count of

unlawful use of a two-way communications device, one count of attempted burglary,

and one count of first-degree misdemeanor criminal mischief. Because the State's
evidence was legally insufficient to sustain the convictions for unlawful use of a two-way

communications device and first-degree misdemeanor criminal mischief, we reverse

those convictions. We affirm the remaining convictions without further comment. And

because the reversals necessitate resentencing, we remand for resentencing before a

different judge.

                             Old Polk City Road Walgreens

              At around 3:00 a.m. on January 14, 2015, a Polk County sheriff's deputy

parked at a church next to a Walgreens drug store that faced Old Polk City Road in

Lakeland. As he worked on reports in his patrol car, the deputy heard noises coming

from the back of the store. Going to investigate, he peered through the trees that

separated him from the store parking lot and saw two individuals using what appeared

to be a yellow pole to attempt to pry open the back emergency exit door of the store.

The deputy quietly radioed for additional units to respond to the area.

              Almost immediately thereafter, the two individuals ran away from the door

and stood next to a dumpster in the Walgreens parking lot. Moments later, a black

Mustang drove into the parking lot and stopped, and the two individuals jumped in. The

car then sped away onto Grady Mock Road and then turned onto Socrum Loop Road.

The deputy radioed the other units with a description of the car and the direction it had

gone, and then he approached the back of the store. There, he discovered pry marks

with yellow paint around them on the emergency exit door. He also heard a buzzing

sound that he thought came from an alarm system.

              Before he could investigate further, the deputy was notified that a black

Mustang with three men inside had been stopped about a mile away. When he arrived




                                           -2-
at the traffic stop, the deputy identified the car and its occupants, one of whom was

Sanchez, as being the men he had seen behind the Walgreens. The men were

arrested, and the Mustang in which they had been riding was searched incident to their

arrests. During that search, officers located three yellow gloves, some tools, and

clothing in the main part of the trunk and a set of hand-held walkie-talkies and additional

power tools inside the compartment designed to hold the spare tire. Some time later, a

deputy walking the route the Mustang had taken from the store found a single yellow

glove and two yellow crowbars lying in the roadway. Upon questioning, the occupants

of the car denied any involvement with any activities at the store.

              While the police investigation was in progress, Walgreens' alarm company

contacted the assistant store manager and asked her to respond to the store. The

assistant manager arrived and met with police on the scene. They accompanied the

assistant manager into the store, and she determined that a wire to the alarm sensor on

the emergency exit door had been cut. The door was damaged, but the perpetrators

had not gained entry into the store.

              Later on January 14, the store manager reviewed surveillance video from

the day before and determined that three men matching the descriptions of the men

stopped in the Mustang had been in the store shortly before 7:00 p.m. on January 13.

While the surveillance cameras did not record all areas of the store, the recordings did

show two of the men entering a hallway that leads to the restrooms and the emergency

exit door. A Polk County sheriff's detective also viewed the surveillance video, and he

testified that the men seen in the video were the same individuals in the Mustang who

were arrested after the burglary.




                                           -3-
              Based on this investigation, the State charged Sanchez with one count of

burglary, one count of possession of burglary tools, and one count of unlawful use of a

two-way communications device.

                                Ariana Street Walgreens

              At 11:00 p.m. on January 13, 2015, the store manager of the Walgreens

on Ariana Street in Lakeland had trouble setting the alarm system when she was

closing the store. The system indicated that a sensor on the back emergency exit door

was not connecting. The manager walked to the emergency exit doors, looked at the

sensor, and did not see anything wrong. She walked outside to look at the back door

itself and did not observe anything out of the ordinary. She then bypassed that sensor,

set the rest of the alarm system, and closed the store.

              At 4:30 a.m. the next morning, the manager received a call asking her to

respond to the store. When she arrived, she discovered that the back emergency exit

door had been damaged by what appeared to be pry marks surrounded by yellow paint.

The investigating police officer later discovered that a wire to the alarm sensor on the

back emergency exit door had been cut—damage the manager had not noticed the

evening before.

              Later that day, the manager reviewed surveillance video from the store

security cameras, which showed three men entering the store shortly after 7:30 p.m. on

January 13, walking generally toward the rear of the store, and then returning to exit

through the front doors. Because the number of cameras in the store was limited, there

was no surveillance footage showing exactly where the men went after they entered the

store. But the manager testified that the video showed the men heading in the general




                                           -4-
direction of the restrooms, which are in the back of the store by the emergency exit

door.

              The manager turned the video footage over to the police detective who

was investigating the incident. The police also collected both the alarm sensor and

some paint chips from the emergency exit door. The manager testified that while the

emergency exit door was damaged, the door had not been repaired because it was still

usable. Nevertheless, upon questioning by the State about the cost to replace the door,

the manager testified, "My guess would be around 1500 or 2000. It's a steel door, you

know, very expensive door, very hard to get into. . . . So that would be my guess." The

State offered no other evidence concerning the cost to replace and/or repair the

damage to the door.

              The Polk County sheriff's detective assigned to investigate the Old Polk

City Road store case was also assigned to the Ariana Street store case, and he

reviewed the surveillance footage from both stores. He testified that the men seen

entering the Ariana Street store at approximately 7:30 p.m. on January 13 were the

same men who were seen entering the Old Polk City Road store at approximately

7:00 p.m. on January 13 and who were arrested after the burglary at that store in the

early morning hours of January 14.1




              1Sanchez   objected to this testimony as calling for a legal conclusion. This
objection was overruled. On appeal, Sanchez argues that the trial court erred by
permitting the police detective to identify the men on the video since the detective had
no prior knowledge of the men. While this argument is correct, see Alvarez v. State,
147 So. 3d 537, 542 (Fla. 4th DCA 2014); Ruffin v. State, 549 So. 2d 250, 251 (Fla. 5th
DCA 1989), this argument was not made in the trial court. Therefore, it is not preserved
for review in this appeal. See Chamberlain v. State, 881 So. 2d 1087, 1100 (Fla. 2004)
("[T]o be preserved for appeal, 'the specific legal ground upon which a claim is based


                                           -5-
              Based on this investigation, the State charged Sanchez with one count of

attempted burglary and one count of criminal mischief.

                                       Defense Case

              At trial, Sanchez testified that he was traveling with his son and another

man from Orlando to Tampa in the early morning hours of January 14. He testified that

they exited the highway to try to find food and got lost. He testified that he worked

installing drywall and fiberglass and that the tools in the car were used for his work. He

denied ever being in either the Ariana Street store or the Old Polk City Road store and

denied attempting to break into either one.

              At the close of the State's case, Sanchez moved for a judgment of

acquittal as to the charges arising out of the Ariana Street store, specifically arguing as

to the criminal mischief charge that the State had failed to offer competent evidence

concerning the value of the damage to the emergency exit doors. As to the charges

arising from the Old Polk City Road store, Sanchez argued that the State had failed to

prove a burglary, had failed to prove that the tools found in the Mustang constituted

burglary tools, and had failed to prove that the walkie-talkies found in the trunk were

used in the commission of any offense. Despite these arguments, the trial court denied

Sanchez's motions for judgment of acquittal, and the jury found Sanchez guilty as

charged on all counts.

              In this appeal, Sanchez does not challenge his convictions for burglary

and possession of burglary tools arising from the events at the Old Polk City Road




must be raised at trial and a claim different than that will not be heard on appeal.' "
(quoting Spann v. State, 857 So. 2d 845, 852 (Fla. 2003))).


                                            -6-
store. However, he has challenged the sufficiency of the evidence to support the

remainder of the convictions. We reject his argument that the evidence was insufficient

to sustain his conviction for attempted burglary of the Ariana Street store. See McDuffie

v. State, 970 So. 2d 312, 330 (Fla. 2007) ("The [S]tate is not required to rebut

conclusively every possible variation of events which could be inferred from the

evidence, but only to introduce competent evidence which is inconsistent with the

defendant's theory of events. Once that threshold burden is met, it becomes the jury's

duty to determine whether the evidence is sufficient to exclude every reasonable

hypothesis of innocence beyond a reasonable doubt." (quoting Orme v. State, 677 So.

2d 258, 262 (Fla. 1996))). However, we reverse Sanchez's remaining two convictions

and remand for resentencing.

I.     Unlawful Use of a Two-Way Communications Device

              First, Sanchez contends that the trial court erred by denying his motion for

judgment of acquittal on the charge of unlawful use of a two-way communications

device because the State presented no evidence that the walkie-talkies found in the

Mustang's trunk were used in any way in the commission of any offense. Sanchez is

correct.

              Section 934.215, Florida Statutes (2015), provides:

              Any person who uses a two-way communications device,
              including, but not limited to, a portable two-way wireless
              communications device, to facilitate or further the
              commission of any felony offense commits a felony of the
              third degree, punishable as provided in s. 775.082,
              s. 775.083, or s. 775.084.

As is clear from the statutory language, the offense has two elements: "(1) the use of a

two-way communications device (2) for the purpose of facilitating or furthering the



                                           -7-
commission of any felony offense." Holt v. State, 173 So. 3d 1079, 1082 (Fla. 5th DCA

2015) (quoting Exantus v. State, 198 So. 3d 1, 2 (Fla. 2d DCA 2014)). Critical to this

offense is that the statute criminalizes the use of the communications device to further

or facilitate a felony, not simply the mere possession of such a device during the

commission of a felony. Therefore, the State must offer some evidence that the

communications device was used in furtherance of the commission of the felony at

issue.

              Here, the State presented evidence that a set of walkie-talkies was found

in the spare tire compartment of the Mustang after the Old Polk City Road store

burglary. But the State presented no evidence to establish that either Sanchez or any

of his codefendants used the walkie-talkies to commit or facilitate the burglary of that

store. No one was seen with them or heard using them or talking on them. Moreover,

the State offered no explanation for how the walkie-talkies could have been stowed in

the spare tire compartment in the less-than-five minutes between the time the initial

deputy saw the perpetrators get in the Mustang and when the Mustang was stopped.

Hence, the State's evidence was legally insufficient to prove that either Sanchez or his

codefendants used the walkie-talkies in furtherance of the burglary, and the trial court

should have granted the motion for judgment of acquittal on this count.

              In this appeal, the State argues that the jury could infer that the walkie-

talkies were used to facilitate the offense because the Mustang "appeared" at the scene

without anyone making a call on a cell phone. But a conviction on this basis would

require an impermissible stacking of inferences. "An impermissible pyramiding of

inferences occurs where at least two inferences in regard to the existence of a criminal




                                            -8-
act must be drawn from the evidence and then stacked to prove the crime charged; in

that scenario, it is said that the evidence lacks the conclusive nature to support a

conviction." Graham v. State, 748 So. 2d 1071, 1072 (Fla. 4th DCA 1999) (citing I.F.T.

v. State, 629 So. 2d 179 (Fla. 2d DCA 1993)).

              Here, to prove the charged offense, the jury would have to infer (1) that

the walkie-talkies were actually used by Sanchez or one of his codefendants rather than

being simply stowed in the car, (2) that Sanchez or one of his codefendants used the

walkie-talkies to communicate with the driver of the Mustang, and (3) that the

communication concerned picking up the perpetrators from the scene to escape the

police. Because these inferences must be stacked to prove the offense of unlawful use

of a two-way communications device, the State's evidence was legally insufficient.

Therefore, we must reverse Sanchez's conviction for this offense.

II.    Criminal Mischief

              Next, Sanchez contends that the trial court should have granted his

motion for judgment of acquittal on the charge of first-degree misdemeanor criminal

mischief arising out of the damage to the emergency exit door of the Ariana Street

store. While there is sufficient evidence to prove that Sanchez committed the offense

itself, the trial court erred by not granting the motion for judgment of acquittal as to the

degree of the offense because the State's evidence was insufficient to prove the amount

of the damage. Therefore, we reverse the conviction for first-degree misdemeanor

criminal mischief and remand for entry of a conviction for second-degree misdemeanor

criminal mischief.

              The applicable statute provides:




                                             -9-
             (a) A person commits the offense of criminal mischief if he
             or she willfully and maliciously injures or damages by any
             means any real or personal property belonging to another,
             including, but not limited to, the placement of graffiti thereon
             or other acts of vandalism thereto.

             (b)1. If the damage to such property is $200 or less, it is a
             misdemeanor of the second degree, punishable as provided
             in s. 775.082 or s. 775.083.

             2. If the damage to such property is greater than $200 but
             less than $1,000, it is a misdemeanor of the first degree,
             punishable as provided in s. 775.082 or s. 775.083.

             3. If the damage is $1,000 or greater, or if there is
             interruption or impairment of a business operation or public
             communication, transportation, supply of water, gas or
             power, or other public service which costs $1,000 or more in
             labor and supplies to restore, it is a felony of the third
             degree, punishable as provided in s. 775.082, s. 775.083, or
             s. 775.084.

§ 806.13(1), Fla. Stat. (2015). As can be seen from this language,

             a plain reading of the criminal mischief statute reveals that
             the amount of damage is an essential element of the crime
             of felony criminal mischief. The only difference between
             second-degree misdemeanor mischief and third-degree
             felony mischief is the value of the damaged property. Felony
             criminal mischief requires proof of the amount of damage,
             whereas second-degree misdemeanor mischief does not.
             Absent proof of the amount of damage, an act of criminal
             mischief, as defined by the criminal mischief statute, is a
             misdemeanor of the second degree. The value of damage,
             therefore, is clearly an essential element of felony criminal
             mischief.

Marrero v. State, 71 So. 3d 881, 887 (Fla. 2011). Further, the Marrero court held that

the jury's "life experience" concerning how much certain repairs might cost could not

substitute for actual evidence of the value of the damage. Id. at 890. This court has

since held that the same reasoning applies to the difference between first-degree




                                          - 10 -
misdemeanor criminal mischief and second-degree misdemeanor criminal mischief.

See Perez v. State, 162 So. 3d 1139, 1140 (Fla. 2d DCA 2015).

              Here, the State charged Sanchez with first-degree misdemeanor criminal

mischief under section 806.13(1)(b)(2); and it presented the testimony of the store

manager in support of the amount of damage. However, the store manager's testimony

was limited to her "guess" that replacement of the door would be between $1500 and

$2000, and she also testified that the door had not been replaced because it was usable

and worked fine in its slightly damaged condition. Neither the store manager nor any

other State witness testified to the diminished value of the door or a cost of repair.

              The manager's "guess" concerning the cost to replace a door that will not

be replaced does not constitute competent evidence of the value of the damage to the

door. Her testimony is not based on the actual cost to replace the door but instead is

based solely on some type of "life experience" that she may have. In the absence of

any evidence of the actual cost to repair the damage to the door, the trial court should

have granted Sanchez's motion for judgment of acquittal as to the charge of first-degree

misdemeanor criminal mischief and should have entered a conviction for only second-

degree misdemeanor criminal mischief. Therefore, we reverse the conviction for the

first-degree misdemeanor and remand for entry of a conviction on the lesser offense of

second-degree misdemeanor criminal mischief. See § 924.34, Fla. Stat. (2015) ("When

the appellate court determines that the evidence does not prove the offense for which

the defendant was found guilty but does establish guilt of a lesser statutory degree of

the offense or a lesser offense necessarily included in the offense charged, the




                                           - 11 -
appellate court shall reverse the judgment and direct the trial court to enter judgment for

the lesser degree of the offense or for the lesser included offense.").

III.   Proceedings on Remand

              Finally, Sanchez contends that he is entitled to be resentenced by a

different judge on remand because the judge who imposed his original sentence

considered improper factors when doing so. This argument also has merit.

              "A trial court violates due process by using a protestation of innocence

against a defendant." Bracero v. State, 10 So. 3d 664, 665 (Fla. 2d DCA 2009); see

also Hannum v. State, 13 So. 3d 132, 135-36 (Fla. 2d DCA 2009). In addition, the court

cannot consider a defendant's truthfulness at trial when imposing sentence. Hannum,

13 So. 3d at 136. When a trial court does so, it violates a defendant's due process

rights, which constitutes fundamental error. Id.

              Here, the sentencing judge told Sanchez that his trial testimony "was

among the least credible explanations of something that I have heard in a very long

time" and that the judge believed that the offenses were part of a "calculated decision

on your and your colleague's [sic] part." Consideration of Sanchez's truthfulness at trial

and his continued assertions of innocence was improper. Given that Sanchez had no

prior felony convictions and scored a nonstate-prison sanction but was sentenced to five

years in prison followed by five years' probation, we cannot say that these improper

considerations did not contribute to the judge's sentencing decision. Therefore, on

remand, Sanchez must be resentenced by a different judge.




                                           - 12 -
IV.   Conclusion

             In sum, we affirm Sanchez's convictions for burglary of a structure,

possession of burglary tools, and attempted burglary. We reverse his convictions for

unlawful use of a two-way communications device and first-degree misdemeanor

criminal mischief. On remand, the trial court should enter a judgment of acquittal on the

charge of unlawful use of a two-way communications device and a judgment for the

lesser offense of second-degree misdemeanor criminal mischief. Following that,

Sanchez is entitled to be resentenced by a different judge using a corrected scoresheet.

             Affirmed in part, reversed in part, and remanded for further proceedings.


SILBERMAN and ROTHSTEIN-YOUAKIM, JJ., Concur.




                                          - 13 -
