Hillary v. State

• Decision Date: 13 December 2017
• Docket Number: No. 4D16–2991,4D16–2991
• Citation: 232 So.3d 3
• Parties: Raymond HILLARY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

232 So.3d 3

Raymond HILLARY, Appellant,

v.STATE of Florida, Appellee.

No. 4D16–2991

District Court of Appeal of Florida, Fourth District.

[December 13, 2017]

Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.

Damoorgian, J.Appellant, Raymond Hillary, appeals his sentence for one count of possession of cocaine and one count of driving without a license.¹ Because the record conclusively establishes that the trial court considered a subsequent arrest without conviction when sentencing Appellant, we are required to reverse pursuant to Norvil v. State , 191 So.3d 406, 407 (Fla. 2016).

After being arrested and charged with one count of possession of cocaine and one count of driving without a license in the underlying case, Appellant entered a plea of not guilty and was released on bond. While out on bond, Appellant was arrested and charged with another offense in an unrelated case. Shortly thereafter, Appellant changed his plea in the underlying case to no contest.

At Appellant's change of plea hearing, the State announced that it was not seeking a Habitual Felony Offender ("HFO") sentence although Appellant was HFO eligible. Based on the State's representation, the court did not confirm that Appellant was aware of the possibility and reasonable consequences of habitualization during its plea colloquy with Appellant. Following the colloquy, the court accepted Appellant's plea and proceeded to sentencing. Although Appellant only scored 37.4 months on his scoresheet, based in large part on the pending charge Appellant accrued while out on bond in the underlying case, the court sentenced Appellant to concurrent sentences of five years in prison on the possession charge and two years in prison followed by two years of probation on the driving without a license charge.

In Norvil , which was issued after Appellant was sentenced, the Florida Supreme Court held that a defendant's subsequent arrest without conviction is an improper factor for the trial court's consideration when sentencing the defendant for the primary offense. 191 So.3d at 410. In this case, by its own admission, the court considered Appellant's subsequent arrest without conviction when sentencing Appellant for the primary offenses. Accordingly, based on Norvil , there is no question that Appellant's sentence was based on the court's consideration of an improper factor. Id.

Although it is evident the court considered an improper factor when sentencing Appellant, the State argues that Appellant is precluded from seeking appellate relief because he failed to object to the court's consideration of his subsequent arrest at sentencing or secure a ruling on the issue via a Florida Rule of Criminal Procedure Rule 3.800(b) motion. The State is incorrect. "[A] trial court's consideration of a constitutionally impermissible sentencing factor is a fundamental error in the sentencing process" which is reviewable for the first time on direct appeal. Fernandez v. State , 212 So.3d 494, 496 (Fla. 2d DCA 2017) ; see also Jackson v. State , 983 So.2d 562, 574 (Fla. 2008) (clarifying that an appellate court may not review a "sentencing error," even if fundamental, for the first time on appeal but may review an error in the "sentencing process" for fundamental error on appeal). Norvil establishes that "consideration of subsequent charges with which the defendant has not been convicted violates...