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Tyrie Deveonta THEOPHILE, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida, Fourth District2018-03-07No. No. 4D16–2841
240 So. 3d 15

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Opinion

majority opinion

Kuntz, J.

The Defendant appeals his conviction for second-degree murder, aggravated battery, and robbery, and sentence of forty-five years imprisonment. He raises several issues on appeal and we affirm each without comment except for one.

We agree with the Defendant that the court erred when it considered a fact at sentencing that specifically conflicted with a factual finding by the jury. See, e.g. , Baehren v. State , 234 So.3d 799 (Fla. 4th DCA Jan. 10, 2018) ; Guerra v. State , 212 So.3d 541, 542 (Fla. 4th DCA 2017). While orally pronouncing the sentence, the court stated that the Defendant pulled out a firearm; that he was brandishing a firearm; and, again, that he pulled out firearms. Yet as counsel for the Defendant noted at the hearing and again argues on appeal, the verdict form specifically asked if the Defendant actually possess[ed] a firearm, and the jury answered no.

Further, the convictions on other charges do not explain the courts statements. Contra Howard v. State , 820 So.2d 337, 340 (Fla. 4th DCA 2002). Here, the jury specifically found the Defendant did not possess a firearm making it impossible to reconcile the courts statements at sentencing with the jurys verdict.

Because of the courts consideration of a fact at sentencing that specifically conflicts with the jurys verdict, we vacate the Defendants sentence and remand the case for resentencing before a different circuit judge. The Defendants conviction is otherwise affirmed.

Affirmed in part, vacated in part, and remanded for resentencing.

Gerber, C.J., and Gross, J., concur.