Full Opinion

Third District Court of Appeal State of Florida Opinion filed March 25, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1173 Lower Tribunal No. 18-13957 ________________ Joshua Kimbrough, Appellant, vs. The State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Alan S. Fine, Judge. Carlos J. Martinez, Public Defender, and Deborah Prager, Assistant Public Defender, for appellant. Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant Attorney General, for appellee. Before EMAS, C.J., and GORDO and LOBREE, JJ. GORDO, J. Joshua Kimbrough appeals his sentence upon conviction for resisting an officer without violence. He asserts that he is entitled to have his sentence vacated and be resentenced by another judge because the trial court improperly considered prior charges of which he had been acquitted when imposing the sentence. “[I]t is fundamental that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence.” Epprecht v. State, 488 So. 2d 129, 131 (Fla. 3d DCA 1986) (citing Townsend v. Burke, 334 U.S. 736, 740 (1948)); see Drinkard v. State, 177 So. 3d 993, 994 (Fla. 1st DCA 2015). “Fundamental error occurs where a trial court considers constitutionally impermissible factors when imposing a sentence.” Yisrael v. State, 65 So. 3d 1177, 1177 (Fla. 1st DCA 2011). Following trial, the jury returned a verdict of guilty for the charge of resisting an officer without violence, a first-degree misdemeanor. During the sentencing hearing, the trial court withheld adjudication and sentenced Kimbrough to 364 days reporting probation. The court explained: And I am going to make two special conditions, anger management and a mental health evaluation and treatment. And here is why. As a juvenile you were adjudicated for resisting an officer with violence. You were charged and went to trial, although you were acquitted at trial of another incident with two counts of resisting an officer, one with violence, and one without violence, and you 2 knew that. I didn’t know that until today. Or well, until I was given this, maybe yesterday. And you also have another juvenile adjudication, so this is not your first rodeo. This transcript raises a reasonable question as to whether the trial court relied on the acquitted charges in pronouncing sentence. Where it remains unclear whether the trial court would have imposed the same sentence absent consideration of an impermissible factor, we must vacate appellant’s sentence and remand for resentencing before a different judge. See Epprecht, 488 So. 2d at 131; Drinkard, 177 So. 3d at 994; Nawaz v. State, 28 So. 3d 122, 125 (Fla. 1st DCA 2010). Reversed and remanded. 3