RAYMOND LAMAR DAVIS

v.

STATE OF FLORIDA

WOLF, J.

Appellant raises two issues concerning his trial after which he was found guilty of various counts involving improper sexual encounters with two minors. We find no error requiring reversal as to these two issues. He raises one issue concerning his sentencing, whether the trial court impermissibly relied on conduct for which he was acquitted in imposing sentence. We agree with appellant as to this issue and remand for resentencing.

Recently in Love v. State, 285 So. 3d 344 (Fla. 2d DCA 2019), the Second District held that a sentencing judge may not consider or rely on acquitted conduct when imposing a sentence. In Love, the court reversed the sentence where the sentencing judge considered the use of a firearm in sentencing after the jury had acquitted the defendant of possessing a firearm. Id. at 346.

In this case, the sentencing judge made it clear on the record that he was relying on conduct that the defendant was acquitted of in imposing sentence. During the sentencing proceeding, the trial court made the following statements:

Count 2, the crime of battery. The offense was presented to the jury and the jury found you . . . guilty of the things that I’m going to mention in just a minute. I personally reviewed . . . the testimony of the kids . . . . N.D., the young girl, testified that the defendant touched himself as he showed her videos of children engaging in sexual acts. He touched her vagina, made her put her mouth to his back part, quote, back part. He forced her hand to touch his front. N.D., the young girl, made these statements under oath, did not waiver under cross examination.

I will also add . . . that the young girl . . . observed you, when her brother [I.T.] was asleep, putting your mouth to the young brother’s penis. The young boy corroborated his sister’s testimony, testifying that the defendant exposed himself to the young boy and showed him and his sister sexual things on his phone and whatever the complete record would describe. The comments in italics are at issue here—each comment refers to a charge of which the defendant had been acquitted:

• At the close of the state’s case, the court acquitted the appellant of count 3, charging “sexual battery by placing mouth on penis of I.T.”. Referring to count 3 at sentencing, the court stated, “[T]he young girl . . . observed you, when her brother [I.T.] was asleep, putting your mouth to the young brother’s penis.”

• By its “not guilty” verdict, the jury acquitted the appellant of counts 7 and 8, which were charges of “showing obscene materials” to I.T. and N.D. Although the defendant was acquitted of those charges, the sentencing judge stated, “N.D., the young girl, testified that the defendant touched himself as he showed her videos of children engaging in sexual acts” and “[t]he young boy corroborated his sister’s testimony, testifying that the defendant exposed himself to the young boy and showed him and his sister sexual things on his phone . . .”

• The court also commented on the jury’s verdict of acquittal on the charges of sexual battery and showing obscene materials to minors by opining on N.D.’s credibility, stating “N.D., the young girl, made these statements under oath, did not waiver under cross examination.” Immediately following these comments, the court sentenced the defendant to two life sentences, to run concurrently with the other sentences pronounced.

It is well settled that when portions of the record show the trial court relied upon prior acquittals in determining a defendant’s sentence, the state has the burden to demonstrate that those considerations “played no part in the sentence imposed.” Williams v. State, 8 So. 3d 1266, 1267 (Fla. 1st DCA 2009) (citing Doty v. State, 884 So. 2d 547, 549 (Fla. 4th DCA 2004)); see also Nichols v. State, 283 So. 3d 947, 950 (Fla. 2d DCA 2019). Although the State argues that the court had reasons for mentioning the three crimes of which the defendant was acquitted, the appellee does not suggest what those reasons might have been.

Based on the trial court’s remarks made during the sentencing, just prior to pronouncing sentence, the law supports a determination that the court improperly considered charges of which the appellant had been acquitted. The State has presented no persuasive argument showing the court did not consider his acquittals during sentencing.

We, therefore, AFFIRM appellant’s convictions, but REMAND for resentencing before a different trial judge.

NORDBY, J., concurs; MAKAR, J., concurs with opinion.