N.D.W. v. State

• Decision Date: 27 December 2017
• Docket Number: Case No. 2D16–4521
• Citation: 235 So.3d 1001
• Parties: N.D.W., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

235 So.3d 1001

N.D.W., Appellant,
v.
STATE of Florida, Appellee.

Case No. 2D16–4521

District Court of Appeal of Florida, Second District.

Opinion filed December 27, 2017

Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

N.D.W. appeals the juvenile disposition order adjudicating him delinquent for two counts of fleeing and eluding a law enforcement officer and one count of grand theft of a motor vehicle, for which the trial court ordered that the thirteen-year-old be committed to the Department of Juvenile Justice (DJJ) for placement in a nonsecure residential program. We affirm the adjudication of delinquency without discussion. However, we agree that the trial court considered impermissible factors at sentencing; thus, we reverse the disposition order and remand for a new disposition hearing.

N.D.W. argues that the trial court erred in considering at sentencing crimes that N.D.W. purportedly committed after these offenses and for which he had not yet been charged or convicted. As a general rule, a sentence within the statutory limits is not subject to appellate review. Charles v. State, 204 So.3d 63, 66 (Fla. 4th DCA 2016). "However, when a trial court relies on impermissible factors in sentencing a defendant, the court violates the defendant's due process rights." Id.

In Norvil v. State, 191 So.3d 406, 410 (Fla. 2016), the supreme court announced the following bright-line rule: "a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense." See also Fernandez v. State, 212 So.3d 494, 496 (Fla. 2d DCA 2017). "[C]onsideration of subsequent charges with which the defendant has not been convicted violates due process ...." Id.; see also A.R.M. v. State, 198 So.3d 1132, 1133 (Fla. 4th DCA 2016) (noting that juvenile defendant's due process rights were violated, pursuant to Norvil, when "the court took into account appellant's arrests without conviction that...