MARCUS DEONTE STRONG v. STATE OF FLORIDA

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,

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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.

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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.

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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.

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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.