CHAD BROY

v.

STATE OF FLORIDA

COHEN, J.

Chad Broy appeals the sentence imposed after a plea to burglary of a dwelling, grand theft from a dwelling, and battery. Broy raises two issues on appeal: the trial court’s alleged consideration of uncharged conduct and its decision not to downward depart. We affirm.

Broy entered the victim’s home at approximately 5:30 P.M. by lifting the rear sliding doors off their track. He consumed beer which he had brought with him and then entered the victim’s bedroom where she was napping.

Broy got into the victim’s bed, told her she was beautiful, and put his arm around her. The victim ran from the room and called 911. Before leaving, Broy stole approximately $190 in cash.

At the sentencing hearing, Broy sought a downward departure sentence, arguing that the offense was isolated, unsophisticated and one for which he was remorseful; that his capacity to appreciate the criminal nature of his conduct or to conform that conduct to the requirements of law was substantially impaired; and that he required specialized treatment for a mental disorder unrelated to substance abuse or addiction for which he was amenable to treatment.1 Broy presented an expert witness, his testimony, and that of his wife, detailing his history of mental health issues stemming from an incident where he was struck in the head. Broy’s medical records 1 On appeal, Broy challenges only the failure to downward depart based upon section 921.0026(2)(c), Florida Statutes (2017), the substantial impairment of the capacity to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law. 2 indicated significant injuries to the frontal and temporal lobes of his brain.

The expert testified that those injuries adversely affected Broy’s language skills and his ability to plan, reason, inhibit impulses, and make rational decisions. The expert opined that at the time of the offenses, Broy had a diminished capacity to comport his behavior with the law.

On appeal, Broy asserts that the trial court improperly considered uncharged conduct because during the sentencing hearing, it inquired as to why he was not charged with a more serious offense than simple battery.2 Because no objection was raised below, Broy argues that fundamental error occurred, relying on our decision in Berben v. State, 268 So. 3d 235 (Fla. 5th DCA 2019).

Berben was convicted of possession of child pornography. Berben, 268 So. 3d at 236. His sentence, which totaled 100 years in the Department of Corrections, was reversed because the trial court made several statements equating the possession of child pornography with the distribution of child pornography. Id. at 237–38.

The trial court went beyond the facts of the case and punished Berben as if he had committed more serious, uncharged offenses. Id. 2 During the plea colloquy, the court noted that the State had established a factual basis for a much higher crime. 3 Unlike Berben, in the instant case, we do not find that the trial court punished Broy for conduct unrelated to the charged offenses. While the trial court inquired as to why the State pursued only a simple battery charge, as opposed to a sexually motivated offense, the State explained that Broy neither exposed himself nor touched the victim in an overtly sexual manner.

The trial court appeared to accept the State’s explanation and did not mention the topic again during the sentencing hearing. Broy was sentenced to time served on the battery charge and was sentenced well below the statutory maximum for the other charges. As we stated in Berben, “Generally, the trial court’s imposition of a sentence that is within the minimum and maximum limits set by the legislature is a matter for the trial [c]ourt in the exercise of its discretion, which cannot be inquired into upon the appellate level.” Id. at 237 (citations and quotations omitted).

We caution that our decision in Berben should be read narrowly.

Berben does not obviate the duty to make a timely objection nor does it stand for the proposition that the facts of the underlying case are not properly considered when imposing sentence.

Not all burglaries are the same. The theft of a bicycle from inside an open garage is qualitatively different from breaking into a home and ransacking the residence in search of valuables, or from crawling into bed 4 with a homeowner during the course of a burglary. It is not error for the trial court to consider the specific circumstances of an offense in fashioning an individualized sentence. See Rankin v. State, 174 So. 3d 1092, 1096 (Fla. 4th DCA 2015) (recognizing that trial court has wide discretion in factors it may consider when imposing sentence).

Broy’s act of getting into bed with the victim and touching her was part and parcel of the burglary charge and properly considered by the trial court in fashioning a sentence. Broy has not established any error, much less fundamental error. Broy’s second issue challenges the trial court’s finding that he failed to establish that his capacity to conform his conduct to the requirements of law was substantially impaired. See § 921.0026(2)(c), Fla. Stat. (2017).

Broy argues that the expert’s testimony established his impaired capacity and thus, provided a basis for the trial court to utilize its discretion and impose a downward departure.

The trial court found that Broy had not established that the offense was unsophisticated or that Broy lacked the ability to appreciate the criminal nature of his conduct. Even assuming that Broy presented sufficient evidence to demonstrate that his capacity to conform his conduct to the requirements of law was substantially impaired, the record suggests that the trial court would not have exercised its discretion to impose a downward 5 departure sentence.

The trial court found that Broy had presented sufficient evidence establishing a need for specialized treatment unrelated to substance abuse for which Broy was amenable to treatment, but nonetheless determined that a downward departure sentence was inappropriate. See Kezal v. State, 42 So. 3d 252, 256 (Fla. 2d DCA 2010) (holding that no reversible error occurred where trial court had mistaken belief that it could not depart when record made clear that, in any event, it would not have exercised its discretion to depart under circumstances of case).

AFFIRMED.

EVANDER, C.J., and HARRIS, J., concur. 6