Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT SHAUN JAI MERCADO, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D21-3444 January 13, 2023 Appeal from the County Court for Pasco County; Anne Wansboro, Judge. Howard L. Dimmig, II, Public Defender, and Joanna Beth Connor, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Tampa, for Appellee. LaROSE, Judge. Shaun Jai Mercado appeals his judgments and sentences in four cases. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A); 9.140(b)(1)(A), (F). He claims that the trial court considered impermissible factors in imposing the sentences. We affirm. Background Mr. Mercado and his partner had an extended, but tumultuous, personal relationship. Eventually, they separated, and she began dating someone new. Mr. Mercado did not welcome this development. His behavior prompted his now former partner to obtain a domestic violence injunction. Unfazed, Mr. Mercado continued to visit her home and persistently contact her. Ultimately, the State charged him in five different cases with a host of misdemeanor offenses, including multiple violations of the injunction. Mr. Mercado pleaded guilty in each case. The trial court delayed sentencing to allow Mr. Mercado an opportunity to prepare mitigation evidence. The sentencing date arrived. Mr. Mercado offered no mitigation evidence. Instead, he blamed his former partner for his misdeeds and misfortunes. In response, and over Mr. Mercado's objection, the State reported that between the plea and sentencing hearings, Mr. Mercado's behavior had become more dangerous and threatening. Specifically, the State presented text messages sent to his former partner's father threatening to shoot and kill him, along with photos of various weapons. The State offered additional threatening text messages sent to the former partner. The State also told the trial court that the former partner's boyfriend's house had been "shot up." The prosecutor informed the trial court that detectives were still investigating these uncharged incidents. At the conclusion of the sentencing hearing, Mr. Mercado requested one year of probation; the State asked for 364 days in jail followed by consecutive probationary terms. The trial court sentenced Mr. Mercado to concurrent one-year probationary terms.1 1 In total, the trial court sentenced Mr. Mercado in five cases. However, Mr. Mercado's notice of appeal and amended notice of appeal seek our review of the probationary and time-served sentences imposed 2 Now, Mr. Mercado contends that the trial court violated his due process rights at sentencing by considering alleged postplea misconduct. See Norvil v. State, 191 So. 3d 406, 410 (Fla. 2016) (adopting a "bright line rule for sentencing purposes: a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense"); Tharp v. State, 273 So. 3d 269, 271 (Fla. 2d DCA 2019) (stating that improper considerations of subsequent uncharged conduct in sentencing violates a defendant's due process rights); Nichols v. State, 283 So. 3d 947, 950 (Fla. 2d DCA 2018) ("When a trial court considers constitutionally impermissible factors in sentencing a defendant, it constitutes fundamental error that requires reversal of the sentence and remand for resentencing."). Analysis At the outset, we reject the State's argument that Mr. Mercado did not preserve his claim for our review. Even if that were so, the alleged trial court error is fundamental. See Love v. State, 235 So. 3d 1037, 1039 (Fla. 2d DCA 2018) ("This court held that the type of error addressed in Norvil is fundamental error that may be considered on appeal despite a lack of objection below." (citing Fernandez v. State, 212 So. 3d 494, 496 (Fla. 2d DCA 2017))). Accordingly, we proceed to the merits. Our review is de novo. See State v. Garcia, 346 So. 3d 581, 585 (Fla. 2022) ("Whether it is fundamental error for a trial judge to consider evidence of any postarrest misconduct in fashioning a sentence is a pure question of law, which we review de novo. . . . In light of Garcia's failure to preserve the issue, appellate review is conditioned on finding that the in only four of the cases (Case Nos. 21-55MMAWS; 21-1539MMAWS; 21- 2044MMAWS; and 21-4454MMAWS). 3 trial court's alleged consideration of Garcia's postarrest misconduct constitutes fundamental error." (citing Cromartie v. State, 70 So. 3d 559, 563 (Fla. 2011))). Consequently, "[w]e 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." Mosley v. State, 198 So. 3d 58, 60 (Fla. 2d DCA 2015) (quoting Moorer v. State, 926 So. 2d 475, 477 (Fla. 1st DCA 2006)). We cannot conclude that the trial court erred. The trial court succinctly pronounced its sentences: 21-2044, the resisting. Adjudication, time served, court costs $273. .... All right. The last three which are 2021MM4454, 21MM55, and 21MM1539. Adjudication, 12 months probation concurrent to one another. So that's concurrent on three cases but consecutive to 21MM2681. Mail-in after first report, no automatic early termination, court costs $625 "Ordinarily, when the trial court allegedly relies on improper sentencing considerations, the State must demonstrate that the trial court's sentencing decision was not so influenced." Turner v. State, 261 So. 3d 729, 734 (Fla. 2d DCA 2019); see also N.D.W. v. State, 235 So. 3d 1001, 1002 (Fla. 2d DCA 2017) ("The burden is on the State to show that the trial court did not rely on the improper factor in imposing the sentence where it appears that the trial court may have done so." (first citing Fernandez, 212 So. 3d at 497; and then citing Norvil, 191 So. 3d at 409)); Nichols, 283 So. 3d at 950 ("It is the State's 'burden to show from the record as a whole that the trial court did not consider impermissible 4 factors in rendering its sentence.' " (quoting Love, 235 So. 3d at 1039- 40)). Mr. Mercado's claim is untenable. Our record reflects no inkling that the trial court relied on impermissible factors. The trial court did not explicitly say, or even intimate, that the postplea conduct influenced its sentencing decisions. N.D.W., 235 So. 3d at 1003 ("Based on the transcript in this case, we cannot say that the trial court did not consider N.D.W.'s subsequent arrests in sentencing him. The court overruled defense counsel's objection and suggested that it would take the information into consideration, and the State has presented no argument that the trial court did not consider this information." (emphasis added)). And, we are reluctant to assume trial court misconduct. See Serrano v. State, 279 So. 3d 296, 302 (Fla. 1st DCA 2019) ("While a court's consideration of constitutionally impermissible factors generally rises to the level of fundamental error, there must be some indication that the court based its sentence on an impermissible factor before this Court will reverse. The mere fact that the court had evidence of a potentially improper factor before it is insufficient to merit reversal." (citation omitted)); see also Harvard v. State, 414 So. 2d 1032, 1034 (Fla. 1982) ("[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." (citing Alford v. State, 355 So. 2d 108 (Fla. 1977))). 5 Notably, Mr. Mercado requested probation. The trial court obliged.2 Had the trial court relied upon impermissible factors, we would expect more onerous punishments. Instead, we have sentences proposed by Mr. Mercado. See, e.g., Love, 235 So. 3d at 1038 (reversing for resentencing "because the State presented evidence of impermissible sentencing factors and [defendant's] sentence may have been based, at least in part, on those impermissible factors" (emphasis added)); Nusspickel v. State, 966 So. 2d 441, 444-45 (Fla. 2d DCA 2007) ("If portions of the record reflect that the trial court may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show from the record as a whole that the trial court did not rely on such impermissible considerations." (emphasis added)). Even if the trial court had considered Mr. Mercado's postplea conduct, such error was harmless given the sentences imposed. See Craft v. State, 312 So. 3d 45, 56 n.6 (Fla. 2020) ("[E]rror that is harmless cannot be fundamental."); Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) ("If the error was not harmful, it would not meet our requirement for being fundamental."). Conclusion We affirm Mr. Mercado's judgments and sentences. Affirmed. SILBERMAN and VILLANTI, JJ., Concur. Opinion subject to revision prior to official publication. 2 Recall that the trial court imposed a time-served sentence in one of the four cases before us. The trial court imposed probation on the three remaining cases. The trial court did not order Mr. Mercado to serve a term of incarceration. 6