” Dunbar, 89 So.3d at 904 n. 3 (quoting Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) ). “A defendant must preserve a sentencing error by objecting at the time of sentencing or in a motion under Florida Rule of Criminal Procedure 3.800(b).” Whitehead v. State, 21 So.3d 157, 160 (Fla. 4th DCA 2009) (citing Fla. R. App. P. 9.140(e) ). Here, appellant preserved the error by filing a rule 3.800(b) motion.
"A defendant must preserve a sentencing error by objecting at the time of sentencing or in a motion under Florida Rule of Criminal Procedure 3.800(b)." Whitehead v. State, 21 So. 3d 157, 160 (Fla. 4th DCA 2009) (citing Fla. R. App. P. 9.140(e)). Here, appellant preserved the error by filing a rule 3.800(b) motion.
However, in an earlier case, we construed the reversal of the sentence as being based upon the defendant's later acquittal of the attempted murder charge. See Whitehead v. State, 21 So.3d 157, 160 (Fla. 4th DCA 2009) (holding that the trial court was authorized to consider pending charges against the defendant and distinguishing Seays because the defendant in Seays had been acquitted of the pending charge).See Yisrael v. State, 65 So.3d 1177, 1178 (Fla. 1st DCA 2011) (holding that consideration of pending or dismissed charges during sentencing results in a denial of the defendant's due process rights); Mirutil v. State, 30 So.3d 588, 590 (Fla. 3d DCA 2010) (holding that the trial court improperly relied on evidence of new violations in determining the appropriate adult sentence to be imposed for the original offenses; since defendant denied committing the new violations, he could not be penalized merely for being arrested and charged); Gray v. State, 964 So.2d 884, 885 (Fla. 2d DCA 2007) (in sentencing defendant for manslaughter, the trial court could not consider new cases pending against defendant).
The comments made by the prosecutor related to acts described in the VOP report or to other convictions. See Whitehead v. State, 21 So. 3d 157, 160 (Fla. 4th DCA 2009) (pending charge could be considered where it was relevant to the sentence). Compare with Reese v. State, 639 So. 2d 1067, 1068 (Fla. 4th DCA 1994) (the court may not consider unsubstantiated allegations of misconduct).
Per Curiam.Affirmed . SeeWhitehead v. State , 21 So.3d 157 (Fla. 4th DCA 2009). Damoorgian, Kuntz, JJ., and Fahnestock, Fabienne, Associate Judge, concur.
At the time of the sentencing hearing, Mr. Mosley had not been charged for any of these incidents, nor was any connection ever drawn between any of these acts and the criminal conviction before the court. Cf. Whitehead v. State, 21 So.3d 157, 160 (Fla. 4th DCA 2009) (in sentencing defendant on convictions of possession of cannabis, contributing to the delinquency or dependency of a child, and delivery of a controlled substance to a minor, sentencing court could consider pending charge of unlawful sex act with a minor because the pending charge also “involved the defendant's conduct toward minors”). While Mr. Mosley's alleged misconduct may be extensive and may well have earned him a reputation as “a nuisance,” the circuit court should not have allowed those allegations to intrude into the sentencing hearing. Mr. Mosley's sentence must, therefore, be vacated.
See § 921.231, Fla. Stat. Subsection (1) lists the factors that should be included in a full presentence investigation report, including “the offender's prior record of arrests and convictions.” § 921.231(1), Fla. Stat. Against this legislative backdrop, we determined that a sentencing court may consider a defendant's pending charges if they are related to the crime for which the defendant is being sentenced. See Whitehead v. State, 21 So.3d 157, 158–60 (Fla. 4th DCA 2009) (trial court appropriately considered defendant's pending charge during sentencing because it involved the defendant's conduct toward minors and he was being sentenced for possession of cannabis, contributing to the delinquency or dependency of a child, and delivery of a controlled substance to a minor). More recently, in Norvil, we held that there is “no significant difference between prior arrests and subsequent arrests for sentencing purposes” because “[i]n both circumstances, the sentencing court will have to ensure the relevance and reliability of information presented regarding the alleged criminal activity and allow the defendant an opportunity to explain or rebut those charges.”
Moreover, relying in part upon the fact that defense counsel never objected to the sentencing procedure, we did not evaluate the extent of the trial court's consideration of the abuse charge. See, e.g., Whitehead v. State, 21 So.3d 157, 160 (Fla. 4th DCA 2009) (upholding the consideration of the defendant's pending charges since (1) they were “relevant to the sentencing because it involved the defendant's conduct toward minors,” (2) the defendant “was not punished for [the] pending charge,” and (3) “he had not been acquitted of the pending charge”). By contrast, the first district has held that consideration of prior arrests during sentencing is impermissible where the trial court “equates” those arrests with evidence of guilt.
Affirmed. See Whitehead v. State, 21 So.3d 157 (Fla. 4th DCA 2009); Harris v. State, 959 So.2d 794 (Fla. 2d DCA 2007); Guzman v. State, 934 So.2d 11 (Fla. 3d DCA 2006); Guion v. State, 753 So.2d 628 (Fla. 5th DCA 2000); State v. Williams, 465 So.2d 1229 (Fla.1985); Lewis v. State, 377 So.2d 640 (Fla.1979).
Filed less than a week after entry of judgments of conviction for, and imposition of sentences on, the new law violations, Mr. Daffin's motion was a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(1) ("During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error."). Such a motion preserves alleged sentencing errors for review on direct appeal. See Amendments to Fla. Ride of Appellate Procedure 9.020(g) Fla. Rule of Criminal Procedure 3.800, 675 So.2d 1374, 1375 (Fla. 1996) (explaining the purpose of Rule 3.800(b) "is to ensure that a defendant will have the opportunity to raise sentencing errors on appeal"); Whitehead v. State, 21 So.3d 157, 160 (Fla. 4th DCA 2009) ("A defendant must preserve a sentencing error by objecting at the time of sentencing or in a motion under Florida Rule of Criminal Procedure 3.800(b)." (citing Fla.R.App.P. 9.140(e))).