NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

 

ROBERT ANDERSON SMITH, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D15-1691 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

 ) 

Opinion filed November 18, 2016. 

Appeal from the Circuit Court for 

Highlands County; Anthony L. Ritenour, 

Judge. 

Howard L. Dimmig, II, Public Defender, 

and Tosha Cohen, Assistant Public 

Defender, Bartow, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Marilyn Muir Beccue, 

Assistant Attorney General, Tampa for 

Appellee. 

CRENSHAW, Judge. 

Robert Smith appeals the sentence imposed on his conviction for felony 

battery. Because the trial court committed fundamental error when it departed from its 
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neutral role during Smith's sentencing, we reverse and remand for resentencing before 

a new judge.1 

A jury found Smith guilty of felony battery based on a prior battery 

conviction but acquitted him of several other charges all stemming from a physical 

altercation with the victim, his then-girlfriend. Smith scored nine points on his 

scoresheet, placing him in the range for a mandatory nonstate prison sanction unless 

the trial court found him to be a danger to the public. See § 775.082(10), Fla. Stat. 

(2013). At his sentencing hearing the trial court found that Smith was a danger to the 

public based on Smith's pattern of domestic abuse towards women and sentenced him 

to five years' imprisonment. The written findings in the trial court's order include: (1) 

"[t]wo former women placed injunctions on [Smith]"; (2) "[p]rior women have been 

subjected to [Smith's] violence"; (3) "[t]hese previous women describe similar scenarios 

of violence as the Victim, to include young children being witness to violence"; (4) 

"[Smith] appears to have the same [ongoing] problem of violence with each 

relationship." 

While a trial court may ask relevant questions of witnesses at a hearing, 

the court commits fundamental error when it assumes the role of prosecutor and 

introduces its own evidence. See Padalla v. State, 895 So. 2d 1251, 1252 (Fla. 2d DCA 

2005) ("In the present case, the trial court assumed the role of the prosecutor and, in so 

doing, committed fundamental error."); Cagle v. State, 821 So. 2d 443, 444 (Fla. 2d 

DCA 2002) (holding that the trial court committed fundamental error by calling and 

 1In light of our reversal, Smith's arguments regarding improperly assessed 

fines and costs are moot. 
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examining its own witness at defendant's revocation of probation hearing); Edwards v. 

State, 807 So. 2d 762, 763 (Fla. 2d DCA 2002) ("The trial court called and did all of the 

questioning of the two State witnesses, a probation officer and a police officer, turning 

the witnesses over to the defense for cross-examination."); Lyles v. State, 742 So. 2d 

842, 843 (Fla. 2d DCA 1999) ("Whether intentional or not, the trial judge gave the 

appearance of partiality by taking sua sponte actions which benefitted the State."). 

The State had no intention of calling any witnesses other than the victim at 

the sentencing hearing: 

THE COURT: State, are you wanting other people 

here for sentencing? 

[STATE]: No, Your Honor, just the victim would like to 

speak. 

THE COURT: Okay. So you're ready to proceed to 

sentencing right now? 

[STATE]: Yes, Your Honor. 

During the State's direct examination of the victim, she mentioned: "I'm not the only 

woman he's done this to. I'm just the only one who didn't drop the charges, because 

they were scared." At this point, the trial court interrupted the State's direct examination 

to ask the victim whether the other women she mentioned had obtained injunctions 

against Smith; the victim informed the court that they did. 

The trial court then proceeded to conduct its own examination of the victim 

while simultaneously looking for the injunctions she mentioned. Apparently the court 

"pulled up a prior domestic" involving Smith and one of the other women mentioned by 

the victim. The court continued its examination of the victim and eventually turned the 
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witness back over to the lawyers who each indicated they had no questions.2 The State 

again informed the court that it did not have anyone else to call. 

Defense counsel then called Smith's mother and grandmother to testify on 

his behalf. Through the mother's testimony the trial court learned that one of the other 

women mentioned by the victim worked at the courthouse and asked the bailiff to 

retrieve her. Also during the mother's testimony defense counsel advised the court that 

Smith's battery of that other woman was the prior battery on his scoresheet which 

qualified Smith for felony battery in this case. Once the defense witnesses were 

finished, Smith indicated he did not wish to address the court. 

The trial court then called the other woman—who had been working 

elsewhere in the courthouse—as its own witness. The court itself conducted the entire 

direct examination of the other woman during which it learned about how she pressed 

and later dropped charges against Smith for multiple beatings, specifics regarding the 

prior battery conviction that appeared on Smith's scoresheet, and the fact that she has a 

permanent injunction against Smith on behalf of her and her son—a child she had with 

 2Before the trial court turned the witness back over to the lawyers, the 

following exchange occurred between the court and the State: 

THE COURT: What was the State's reason in not 

trying to bring in priors? 

[STATE]: We're not allowed to. 

THE COURT: We'll discuss it later. 

Smith also argues that this amounts to impermissible coaching thus further 

compounding the trial court's error in departing from neutrality. See Chastine v. 

Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993) ("Obviously, the trial judge serves as 

the neutral arbiter in the proceedings and must not enter the fray by giving 'tips' to either 

side."); see also Lee v. State, 789 So. 2d 1105, 1107 (Fla. 4th DCA 2001). In light of 

the other improper actions of the trial court we do not address whether this comment 

alone amounted to an improper departure from neutrality. 
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Smith. Defense counsel did not object at any point during this examination. The trial 

court offered to let the lawyers ask questions of the witness but both declined to do so.3 

The parties then gave their closing arguments, after which the court 

recalled the other woman and continued to question her regarding the specifics of 

Smith's alleged prior attacks. When the court finished its second examination of its own 

witness, the State again indicated it had no questions for the witness. 

At the conclusion of the hearing the trial court found Smith to be a danger 

to the public, pronouncing the basis for its finding as follows: 

My sentence is based on what I have heard from the victim 

in this case, and as well as looking up -- we've had prior 

victims of women, and it appears that you just think this is 

the way life should be. 

. . . . 

I found him a threat to society based on the prior 

injunctions, the prior women, including scenarios that look 

like the same problem going on and on. That's it. 

Although defense counsel did not object to the trial court's improper 

actions in this case, the court's conduct in this case amounts to fundamental error. See 

Cagle, 821 So. 2d at 444. We recognize that "not every act of judicial impartiality will 

qualify as fundamental error." Williams v. State, 901 So. 2d 357, 359 n.3 (Fla. 2d DCA 

2005) (citing Mathew v. State, 837 So. 2d 1167, 1170 (Fla. 4th DCA 2003)). But here, 

the trial court called its own fact witness who provided a substantial portion of the 

testimony against Smith. And the trial court specifically indicated that its ruling was 

based on the testimony of its own witness. Thus, the trial court assumed the role of the 

prosecutor and committed fundamental error by "depriv[ing] the defendant of the fair 

 3After the witness stepped down, the State informed the trial court that the 

other woman mentioned by the victim was twenty-five minutes away and willing to 

testify. The trial court informed the State that this was "not needed." 
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and impartial tribunal which is the cornerstone of due process." Cagle, 821 So. 2d at 

444. The State argues that "the court properly sought the information necessary to 

decide whether or not [Smith] was a danger to society, as was required by [section 

775.082]." However, nothing in section 775.082 authorizes the trial court to step into 

the role of the prosecutor during sentencing. Accordingly, we must reverse Smith's 

sentence and remand for resentencing before a different judge. See Edwards, 807 So. 

2d at 764. 

 Reversed and remanded for resentencing. 

SILBERMAN and BADALAMENTI, JJ., Concur.