Norvil v. State, 4D11–1740.

• Decision Date: 12 March 2014
• Docket Number: No. 4D11–1740.,4D11–1740.
• Citation: 162 So.3d 3
• Parties: Sidney NORVIL, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

162 So.3d 3

Sidney NORVIL, Jr., Appellant

v.STATE of Florida, Appellee.

No. 4D11–1740.

District Court of Appeal of Florida, Fourth District.

March 12, 2014.

Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

EN BANC

TAYLOR, J.

Defendant, Sidney Norvil, appeals an order of the trial court denying his motion to withdraw his plea after sentencing and to vacate his sentence.We affirm the order as to the plea withdrawal because the record conclusively shows that the plea was entered into knowingly, freely, and voluntarily without any competency issues.We also affirm the defendant's sentence, but we write to address his argument that the trial court improperly considered subsequent charges pending against him at sentencing.To clarify the law on this issue, we have elected to consider this case en banc.

The defendant entered an open plea to the charge of armed burglary of a dwelling.Before sentencing, the state filed a sentencing memorandum recommending that the court consider a new charge pending against the defendant for burglary of a vehicle.Defense counsel responded with a sentencing memorandum objecting to the state's recommendation.

At the sentencing hearing, defense counsel renewed her objection and asked that the court not consider the pending burglary charge.She explained that the defendant had denied the charge and that she had not had an opportunity to investigate the facts of the case.The trial court, however, inquired about the nature and status of the pending burglary case.The state informed the court that the new charge involved burglary of a retired deputy's vehicle.The state further advised the trial court that a fingerprint technician's report revealed that the defendant's fingerprints were found on CD cases stacked on the center console of the vehicle.

Before pronouncing sentence, the trial court referred to the pending burglary charge, along with a trespass charge to which the defendant had already entered a plea, and noted that both arrests occurred while the defendant was out on bond awaiting trial in this case.The court commented:

We have two Sidney Junior Norvils.We have the Sidney Norvil that [defense counsel] knows and that meets with her, expresses all these positive things about his outlook in life.We have the Sidney Norvil that comes to court respectful, in business attire, conducts himself as a gentleman.

And then we have the Sidney Norvil who acts out on the street and constantly is getting arrested while out on bond, arrested for trespass at a place, at a mall, arrested now for burglary of a retired deputy sheriff's car, with fingerprint identification.And these arrests aren't distant arrests.These arrests occur while out on bond in this case.

....

[T]he Sidney Norvil that is committing crimes is the Sidney Norvil that's running around with his friends breaking into people's cars—breaking into people's houses.

The trial court declined to sentence the defendant as a youthful offender, and instead sentenced him to twelve years in prison.

The defendant argues that the trial court violated his due process rights during sentencing by improperly considering new charges pending against him.He seeks a reversal of his sentence and remand for resentencing before a different judge.

“Generally, the trial court's imposition of a sentence that is within the minimum and maximum limits set by the legislature‘is a matter for the trial [c]ourt in the exercise of its discretion, which cannot be inquired into upon the appellate level.’ ”Nusspickel v. State,966 So.2d 441, 444(Fla. 2d DCA2007)(quotingShellman v. State,222 So.2d 789, 790(Fla. 2d DCA1969) ).However, an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence.Peters v. State,128 So.3d 832, 844(Fla. 4th DCA2013);Dowling v. State,829 So.2d 368, 370(Fla. 4th DCA2002);Howard v. State,820 So.2d 337, 339–40(Fla. 4th DCA2002).

When a trial court relies on constitutionally impermissible factors in sentencing a defendant, it violates the defendant's due process rights.See, e.g., Doty v. State,884 So.2d 547, 549(Fla. 4th DCA2004)(holding that the trial court violated the defendant's due process rights by relying on conduct of which he had actually been acquitted when imposing a sentence);Epprecht v. State,488 So.2d 129, 131(Fla. 3d DCA1986)(same);Nawaz v. State,28 So.3d 122, 124(Fla. 1st DCA2010)(holding that the trial court's apparent consideration of the defendant's national origin during sentencing amounted to a due process violation and required resentencing by a different judge).A de novo standard of review applies to a claim that the trial court committed a sentencing error that rendered the sentence illegal.State v. Valera,75 So.3d 330, 331–32(Fla. 4th DCA2011);Etienne v. State,15 So.3d 890, 893(Fla. 4th DCA2009)(citingJackson v. State,925 So.2d 1168, 1170 n. 1(Fla. 4th DCA2006) ).

Here, the defendant claims that the trial court violated his due process rights at sentencing by considering a pending charge that resulted from an arrest which occurred after the crime for which he was being sentenced.He cites Seays v. State,789 So.2d 1209, 1210(Fla. 4th DCA2001), to support his argument that while prior arrests may be considered, subsequent arrests may not.

In Seays,the defendant was tried by jury and found guilty of burglary of a conveyance with a battery.At sentencing, the state informed the trial court that the defendant had been charged with attempted murder of the same victim based on acts he committed two days after the burglary and battery.The state requested a sentence at the top of the guidelines.Noting that “serious charges are pending now on Mr. Seays,”the trial court sentenced the defendant to the maximum sentence under the guidelines.Id. at 1209.

Mr. Seays appealed, arguing that the trial court erred in considering the pending attempted murder charge in sentencing him.Id.He relied on Reese v. State,639 So.2d 1067(Fla. 4th DCA1994), andState v. Potts,526 So.2d 63(Fla.1988).In Reese,the trial court considered argument by the state at the sentencing hearing that the defendant was a principal in other drug transactions.We held that the trial court erred in considering the state's argument because there was no record evidence to support it.Although the state had information that Reese had shown up in other drug sting videos, the state conceded that it lacked a prima facie case against him on any additional drug charges.We reversed the defendant's sentence, stating that “unsubstantiated allegations of misconduct may not be considered by a trial judge at a criminal sentencing hearing and to do so violates fundamental due process.”639 So.2d at 1068.We noted our previous holding in Jansson v. State,399 So.2d 1061, 1064(Fla. 4th DCA1981), “that a trial court can consider a defendant's prior arrests not leading to convictions for purposes of sentencing so long as the court recognizes that these arrests are not convictions or findings of guilt, and the defendant is given an opportunity to explain or offer evidence on the issue of his prior arrests.”However, we rejected the sentencing court's use of “unsupported speculations” that went “far beyond what was approved in Jansson. ”Reese,639 So.2d at 1068.

In Seays,the state relied on Jansson to argue that the trial court did not err in considering the pending attempted murder charge.However, we distinguished Jansson because in that casethe trial court considered the defendant's prior arrests, rather than a subsequent arrest, and also allowed the defendant to offer explanations.Seays,789 So.2d at 1210.We reversed Mr. Seays' sentence and remanded for resentencing before a different judge.Id.

Although some courts have interpreted our reversal in Seays to be because the attempted murder charge arose subsequent to the offense for which the defendant was being sentenced,¹ our court has had different views on the basis for the reversal.In a recent case, we interpreted the reversal of the sentence in Seays as the result of the trial judge's consideration of subsequent arrests.SeePeters,128 So.3d at 845(citingSeays for its reversal of a sentence where the judge considered subsequent arrests).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.SeeWhitehead v. State,21 So.3d 157, 160(Fla. 4th DCA2009)(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).²

We reiterated in Whitehead that a court can consider pending charges if they are relevant for sentencing purposes.21 So.3d at 160(citingDowling,829 So.2d at 371andJansson,399 So.2d at 1064).Dowling explained that “[t]he United States Supreme Court has held that it is not a violation of a defendant's constitutional rights to consider other relevant factors when determining an appropriate sentence.”829 So.2d at 371(citingRoberts v. United States,445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622(1980)andWilliams v. New York,337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337(1949)).

In Whitehead,the defendant was sentenced for possession of cannabis less than 20 grams, contributing to the delinquency or dependency of a child, and delivery of a controlled substance to a minor.21 So.3d at 158.He appealed his sentence, arguing, among other things, that the trial court improperly considered pending charges from another county.The pending charges were for unlawful sex acts with a minor in Indian River County.Finding the pending charges relevant to sentencing because it involved ...