Turner v. State

• Decision Date: 19 December 2018
• Docket Number: Case No. 2D16-3474
• Citation: 261 So.3d 729
• Parties: Timothy TURNER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

261 So.3d 729

Timothy TURNER, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D16-3474

District Court of Appeal of Florida, Second District.

Opinion filed December 19, 2018

Anthony W. Surber of Surber Law P.A., Mulberry, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Salemi Ashby, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Chief Judge.

"The young man knows the rules, but the old man knows the exceptions." Oliver Wendell Holmes, Sr., Valedictory Address, Delivered to the Graduating Class of the Bellevue Hospital College, March 2, 1871 , 13 N.Y. Med. J. 420, 426 (1871). Dr. Holmes' wisdom underscores the fact that, sometimes, bright-line rules do not burn so brightly. So it is for Timothy Turner.

The trial court sentenced Mr. Turner to life imprisonment after revoking his community control. On appeal, Mr. Turner argues that under the "bright line" rule of Norvil v. State, 191 So.3d 406, 410 (Fla. 2016), "a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense." He contends that the trial court did just that by hearing evidence about his pending new law violations that occurred during his arrest for violating community control.

Norvil's bright line rule is inapplicable here. We conclude that the trial court may consider the facts underlying the new law violations in assessing whether to revoke community control and to tailor an appropriate sentence upon revocation. Although we affirm, we remand for correction of a scrivener's error in the revocation order.

Background

A jury convicted Mr. Turner of second-degree murder; the trial court imposed a life sentence. Following a successful postconviction motion, Mr. Turner's conviction was vacated. Thereafter, he and the State negotiated a sentence of eighteen years' imprisonment, with credit for time already served, followed by two years of community control.

Eventually, Mr. Turner was released to community control. After roughly four months, the State filed a violation of community control affidavit alleging that Mr. Turner failed to submit to urinalysis, improperly changed his residence, and failed to remain confined to his residence. In an amended violation affidavit, the State alleged that Mr. Turner also committed several new law violations, all of which were discovered or precipitated by law enforcement's attempts to arrest him. More specifically, the amended violation affidavit stated that Mr. Turner violated his community control by being arrested for burglary with assault or battery, resisting officers without violence, and various drug-related offenses.

Mr. Turner admitted to each of the violations. The trial court scheduled another hearing where the State and Mr. Turner could call witnesses as to the issues of revocation and sentencing.

At that later hearing, several witnesses testified about the aggravated nature of the new law violations. Law enforcement officers detailed their efforts to execute the arrest warrant issued for the original violation affidavit. They testified that Mr. Turner tried to flee by pushing out a window screen from the back of his residence. He fled to a neighbor's house where he ran through a glass door. He ran into the neighbor's bedroom, knocked down the unwitting neighbor, tried to conceal himself, and ultimately jumped out of her bedroom window. Law enforcement apprehended Mr. Turner outside of the neighbor's house and discovered a sack of drugs and drug paraphernalia in his pocket.

A licensed psychologist testified for Mr. Turner. She diagnosed him with "Posttraumatic Stress Disorder

, Bipolar Disorder, and also Panic Disorder. [She] also diagnosed him with ... Stimulant Use Disorder with respect to his use of amphetamine." The psychologist further described the physical, sexual, and emotional violence Mr. Turner suffered growing up. She stated that Mr. Turner "[ha]s a severe drug problem," and that at the time he committed the new law violations, "he related that he had been using methamphetamine daily."

At the conclusion of the testimony, the parties presented argument as to the proper disposition. Mr. Turner requested that the trial court modify his community control "to include a residential dual diagnosis treatment center." The State requested the revocation of Mr. Turner's community control and imposition of a life sentence. The trial court agreed with the State:

Based on everything I've reviewed that's been submitted to the court, the defendant's past history, everything I've heard today, my conclusion, Mr. Turner, is that you have problems but you're dangerous. People have been hurt. People continue to be hurt by your conduct. I just can't get past that.

Your entire history is replete with crimes of violence at various points in your history to a greater or lesser extent and for the protection of everyone I agree with the State's position in this matter. You were previously adjudicated. I find you in violation of your community control. I revoke your community control. You're sentenced to life in prison.

The trial court later entered a written revocation order.

Analysis

Mr. Turner maintains that the trial court erred in sentencing him based upon its consideration of the pending new law violations. He relies principally on Norvil, which "adopt[ed] the following bright line rule for sentencing purposes: a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense." Id.; see, e.g., Fernandez v. State, 212 So.3d 494, 495 (Fla. 2d DCA 2017) ("Based on the supreme court's decision last year in [ Norvil ], we are required to reverse his sentence because the trial court improperly considered Mr. Fernandez's arrest for an alleged offense committed while he was on pretrial release on the possession charge.").¹

In Norvil, the trial court considered an arrest subsequent to the primary offense in sentencing the defendant. 191 So.3d at 408. The Florida Supreme Court ruled that the Criminal Punishment Code (CPC) did not permit such consideration. Id. at 409. Holding that the trial court could not consider sentencing factors not authorized in the CPC, the court concluded that trial courts should consider only prior arrests and convictions, and not mere arrests subsequent to the charged crime. Id. ("[A]rrests and convictions considered by a trial judge in sentencing occur ‘prior to the time of the primary offense,’ and not subsequent to the primary offense." (quoting § 921.0021(5), Fla. Stat. (2010) ); see also § 921.231(1)(c), Fla. Stat. (1998) (providing that a presentence investigation report include "[t]he offender's prior record of arrests and convictions").

Even before Norvil, we held that a trial court may not consider for sentencing the details of pending charges that occurred after the primary offense. See Mosely v. State, 198 So.3d 58, 59–60 (Fla. 2d DCA 2015) (holding that incidents of misconduct occurring after the charged offense, some of which did not result in charges or arrests, were impermissible sentencing factors); Gray v. State, 964 So.2d 884, 885 (Fla. 2d DCA 2007) (reversing the defendant's sentence because the trial court improperly considered the details of pending charges); see also State v. Potts, 526 So.2d 63, 63 (Fla. 1988) ("The state through its criminal process may not penalize someone merely for the status of being under indictment or otherwise accused of a crime."). One of our sister districts has determined that, even in the absence of the submission of evidence of a pending charge, reversal of a defendant's sentence is required "when the court repeatedly emphasized the charged conduct during the sentencing hearing, indicated that it believed the conduct occurred, and appeared to rely on the conduct, in part, to justify the sentence." Brown v. State, 225 So.3d 947, 948 (Fla. 5th DCA 2017).

Mr. Turner contends that because he admitted to the violations, "there was no evidentiary hearing held to prove the new law violations by ‘the greater weight of the evidence.’ " See Savage v. State, 120 So.3d 619, 621 (Fla. 2d DCA 2013) (observing that at a revocation hearing the State must "prove[ ] by the greater weight of the evidence that the probationer willfully and substantially violated probation"). He argues that he did not admit guilt as to any of the new pending charges; rather, he only admitted a new law violation as he was only arrested for those charges. At the time of sentencing, the new law violation charges were set for trial.

Ordinarily, when the trial court allegedly relies on improper sentencing considerations, the State must demonstrate that the trial court's sentencing decision was not so influenced. See N.D.W. v. State, 235 So.3d 1001, 1002 (Fla. 2d DCA 2017) ("The burden is on the State to show that the trial court did not rely on the improper factor in imposing the sentence where it appears that the trial court may have done so." (first citing Fernandez, 212 So.3d at 497 ; then citing Norvil, 191 So.3d at 409 ) ). We have reversed cases for resentencing where the sentence has been, "at least in part," influenced by improper sentencing considerations. See, e.g., Love v. State, 235 So.3d 1037, 1038 (Fla. 2d DCA 2018) (reversing for resentencing "because the State presented evidence of impermissible sentencing factors and [defendant's] sentence may have been based, at least in part, on those impermissible factors"); Nusspickel v. State, 966 So.2d 441, 444–45 (Fla. 2d DCA 2007) ("If portions of the record reflect that the trial court may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show from the record as a whole that the trial court did not rely on such impermissible considerations.").

However, we need not put this case through the rigors of such an examination. To our way of thinking, a community control revocation proceeding is distinguishable from the scenario in Norvil, where, following the defendant's...