Full Opinion

Third District Court of Appeal State of Florida Opinion filed September 30, 2026. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D24-0843 Lower Tribunal No. F09-21252 ________________ Christopher Mc Taw, Appellant, vs. State of Florida, Appellee. An Appeal from the Circuit Court for Miami-Dade County, Ramiro C. Areces, Judge. Carlos J. Martinez, Public Defender and Jennifer Thornton, Assistant Public Defender, for appellant. James Uthmeier, Attorney General and Haccord J. Curry, Assistant Attorney General, for appellee. Before MILLER, LOBREE and BOKOR, JJ. LOBREE, J. Christopher Mc Taw appeals the trial court’s revocation of probation and imposed sentence. We affirm the revocation of probation but reverse and remand for resentencing before a different judge because the trial court erred by relying on two withdrawn affidavits of violation of probation when making a dangerousness finding and imposing sentence. BACKGROUND In August 2011, Mc Taw pled guilty to six separate sex offenses and was sentenced as a habitual felony offender. As part of the plea, Mc Taw entered into an agreement with forty-one mandatory conditions of probation, which included a curfew from 10:00 P.M. to 6:00 A.M. In December 2023, Mc Taw’s probation officer filed an affidavit of violation of probation stating Mc Taw failed to comply with the curfew condition of his probation. At the hearing on the matter, the State presented testimony from Mc Taw’s probation officer that included discussion of two prior affidavits of violation of probation she had filed and later withdrawn. Mc Taw objected to the discussion of these withdrawn affidavits but was overruled by the trial court. The trial court later concluded Mc Taw’s violation was willful and substantial and proceeded to conduct a hearing to determine if Mc Taw was a danger to the community as required by section 948.06(8)(e), Florida Statutes (2024), because Mc Taw qualified as a violent felony offender of 2 special concern. In concluding that Mc Taw was a danger to the community, the trial court specifically stated: His presence[,] I think it indicates that when he thinks he needs to leave he leaves. Those are willful decisions. He has decided to violate his probation because he thinks he needs to go. He clearly [sic] has not amenable to non-incarceration sanctions. As I indicated, not only has there been three, two prior violations that have been filed and withdrawn but now we got a violation which were here on that is a failure to comply with curfew requirements which he admittedly failed to comply with and again even when I asked just straight out by his attorney would he be amenable to GPS, he hesitated because he doesn’t think it’s a problem. Mc Taw was then sentenced to twenty-five years in prison followed by five years reporting probation with a GPS monitor as a habitual offender. This appeal followed. ANALYSIS Mc Taw contends the trial court’s consideration of the withdrawn affidavits of violation during sentencing amounted to a denial of his due process and constituted fundamental error.1 “Fundamental error occurs where a trial court considers constitutionally impermissible factors when 1 “Whether a trial court violates a defendant’s due process rights by considering impermissible factors in sentencing is a question of law subject to de novo review.” Costa v. State, 51 Fla. L. Weekly D1334, D1335 (Fla. 3d DCA July 1, 2026) (quoting Baehren v. State, 234 So. 3d 799, 801 (Fla. 4th DCA 2018)). 3 imposing a sentence.” Ramirez v. State, 420 So. 3d 570, 576 (Fla. 3d DCA 2025) (quoting Yisrael v. State, 65 So. 3d 1177, 1177 (Fla. 1st DCA 2011)). “Although it is permissible for the trial court to consider the circumstances surrounding the primary offense and the defendant’s prior record, consideration of subsequent misconduct or pending or dismissed charges is constitutionally impermissible and violates a defendant’s due process rights.” Nichols v. State, 283 So. 3d 947, 950 (Fla. 2d DCA 2019). Here, the record reflects the trial court improperly considered the two withdrawn affidavits of violation when it made its dangerousness finding and sentenced Mc Taw. The trial court relied on the withdrawn affidavits to conclude that Mc Taw was a danger to the public and “not amenable to non-incarceration sanctions.” Therefore, we reverse Mc Taw’s sentence and remand for resentencing before a different judge. See Chang v. State, 423 So. 3d 437, 457 (Fla. 2d DCA 2025) (“Where it is clear that the State directed a trial court’s attention to uncharged misconduct . . . and it is likewise clear that the trial court relied on such information, this court must reverse and remand for resentencing before a different judge.” (quoting Alhasani v. State, 397 So. 3d 814, 818 (Fla. 2d DCA 2024))). Reversed and remanded. 4