Supreme Court of Florida
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No. SC14-746
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SIDNEY NORVIL, Jr.,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[April 28, 2016]
PERRY, J.
Sidney Norvil, Jr., seeks review of the decision of the Fourth District Court
of Appeal in Norvil v. State, 162 So. 3d 3 (Fla. 4th DCA 2014), on the ground that
it expressly and directly conflicts with Yisrael v. State, 65 So. 3d 1177 (Fla. 1st
DCA 2011), Mirutil v. State, 30 So. 3d 588 (Fla. 3d DCA 2010), and Gray v. State,
964 So. 2d 884 (Fla. 2d DCA 2007), on the issue of whether a trial court violated a
defendant’s due process rights at sentencing by considering a subsequent arrest
without conviction during sentencing for the primary offense. We have
jurisdiction. See art. V, § 3(b)(3), Fla. Const. For reasons provided below, we
hold that a trial court may not consider a subsequent arrest without conviction
during sentencing for the primary offense. We therefore quash the decision of the
Fourth District in Norvil and approve the conflict cases.
The relevant facts were summarized by the Fourth District Court of Appeal
as follows:
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 [Norvil Junior]. 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
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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.
Norvil, 162 So. 3d at 5-6. Norvil appealed to the Fourth District Court of Appeal.
Even though the Fourth District affirmed the trial court’s order and Norvil’s
sentence, the district court, en banc, elected to address the issue regarding the trial
court’s consideration of subsequent charges pending against Norvil at sentencing.
Id. at 5. The Fourth District upheld consideration of Norvil’s subsequent arrest and
charges at sentencing because: “(1) the new charge was relevant; (2) the
allegations of criminal conduct were supported by evidence in the record; (3) the
defendant had not been acquitted of the charge that arose from the subsequent
arrest; (4) the record [did] not show that the trial court placed undue emphasis on
the subsequent arrest and charge in imposing [the] sentence; and (5) the defendant
had an opportunity to explain or present evidence on the issue of his prior and
subsequent arrests.” Id. at 9.
The issue before this Court is whether the trial court violated the defendant’s
due process rights by considering a subsequent arrest without conviction during
sentencing for the primary offense, and is thus a pure question of law.
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Accordingly, the proper standard of review is de novo. See Cromartie v. State, 70
So. 3d 559, 563 (Fla. 2011).
Chapter 921, which includes the Criminal Punishment Code (CPC), governs
sentencing in Florida. The CPC dictates that:
[t]he provision of criminal penalties and of limitations upon the
application of such penalties is a matter of predominantly substantive
law and, as such, is a matter properly addressed by the Legislature.
The Legislature, in the exercise of its authority and responsibility to
establish sentencing criteria, to provide for the imposition of criminal
penalties, and to make the best use of state prisons so that violent
criminal offenders are appropriately incarcerated, has determined that
it is in the best interest of the state to develop, implement, and revise a
sentencing policy.
§ 921.002(1), Fla. Stat. (2010). The CPC embodies the principles that:
[t]he primary purpose of sentencing is to punish the offender.
Rehabilitation is a desired goal of the criminal justice system but is
subordinate to the goal of punishment. The penalty imposed is
commensurate with the severity of the primary offense and the
circumstances surrounding the primary offense. The severity of the
sentence increases with the length and nature of the offender’s prior
record.
§ 921.002(1)(b), (c), and (d), Fla. Stat. (2010). We recognized almost identical
principles in Hall v. State, 823 So. 2d 757, 759-60 (Fla. 2002), abrogation on other
grounds recognized in State v. Johnson, 122 So. 3d 856, 862 (Fla. 2013).
In the present case, the record reflects that the sentencing judge ordered a
presentencing investigation (PSI) report pursuant to § 921.231(1), Fla. Stat. (2010).
The purpose of the PSI report is to provide the sentencing court with information
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that is helpful in determining the type of sentence that should be imposed. Fla. R.
Crim. P. 3.712(a). This report must include, inter alia, the offender’s prior record
of arrests and convictions. § 921.231(1)(c), Fla. Stat. (2010). In other words, by
definition, the arrests 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. § 921.0021(5), Fla. Stat. (2010). Additionally, the terms “primary
offense” and “prior record,” which are included in the CPC’s sentencing principles,
do not include a subsequent arrest and its related charges. See §§ 921.0021(4)(5),
Fla. Stats. (2010).
With regard to the sentencing criteria enunciated in chapter 921, along with
its applicable definitions, we conclude that the CPC is unambiguous concerning
the factors a trial court may consider in sentencing a defendant. The Legislature
included prior arrests as information that is helpful in imposing the appropriate
sentence for a defendant. § 921.231(1)(c), Fla. Stat. (2010). However, if the
Legislature had intended to include subsequent arrests and their related charges as
permissible sentencing factors, it would have done so. See Koster v. Sullivan, 160
So. 3d 385, 390 (Fla. 2015) (“Florida courts are ‘without power to construe an
unambiguous statute in a way which would extend, modify, or limit, its express
terms or its reasonable and obvious implications. To do so would be an abrogation
of legislative power.’ ”) (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)).
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The record demonstrates that the trial court relied on the subsequent arrest
and charge, which Norvil denied and also had not been tried for, in imposing
sentence in the present case. Immediately before pronouncing sentence, the trial
court stated that it saw two Sydney Norvils, one, in particular, who was “arrested
now for burglary of a retired deputy sheriff’s car, with fingerprint identification”
and “running around with his friends breaking into people’s cars.” Even though
the record shows that the prosecutor did not go into detail about the evidence in the
burglary of a vehicle charge—two fingerprints found on a CD case—based on the
trial court’s comments, the trial court emphasized and relied upon the subsequent
arrest and its related charge of burglary of a vehicle in sentencing Norvil on the
primary offense.
Accordingly, the State failed to show that the trial court did not rely on the
pending charge resulting from the subsequent arrest for burglary of a dwelling.
Furthermore, chapter 921 is unambiguous and specifically states that prior arrests
and convictions, not subsequent arrests and their related charges, are appropriate
sentencing considerations. In conclusion, we adopt 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. This rule is consistent with
the Criminal Punishment Code, and it preserves a defendant’s due process rights
during sentencing.
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We therefore quash the Fourth District’s decision in Norvil and approve
Yisrael, Gray, and Mirutil.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
Neither the Criminal Punishment Code (CPC) nor the requirements of due
process preclude a sentencing judge from considering a criminal act that was
committed by a defendant after the crime for which sentence is being imposed.
Accordingly, I dissent from the majority’s decision, which imposes unwarranted
limitations on the discretion of circuit courts to impose sentence up to the statutory
maximum. I would approve the district court’s conclusion that Norvil’s sentence
should be affirmed.
The majority concludes that the sentencing court is precluded from
considering criminal acts committed by a defendant after the date of the offense for
which the defendant is being sentenced because the sentencing court is limited to
the consideration of facts detailed in the Presentence Investigation Report (PSI)
prepared pursuant to section 921.231, Florida Statutes (2010). This line of
reasoning is premised on a misunderstanding of the role of PSIs under the CPC.
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Nothing in the CPC either expressly or implicitly limits a sentencing judge to
considering facts presented in a PSI. Under the statutory provisions, the
sentencing judge has complete discretion concerning whether or not a PSI will be
prepared. Section 921.231 does not require any sentencing judge to make use of a
PSI. The statute unambiguously provides that the sentencing court “may refer [a]
case to the Department of Corrections for investigation and recommendation.”
§ 921.231(1), Fla. Stat (2010). Under the provisions of the statute, PSIs thus are
prepared only “[u]pon request of the court[.]” Id. It is nonsensical to conclude that
the Legislature intended to limit the scope of matters considered by the sentencing
court to facts presented in a PSI when the Legislature has not required the use of a
PSI but has granted full discretion to the sentencing court to forgo using a PSI at
all. Although Florida Rule of Criminal Procedure 3.710(a) conditions the
imposition of a prison sentence on juveniles and first-time felony offenders on the
consideration of a PSI by the sentencing judge, this judicial rule does not justify
any conclusions about the intent of the Legislature concerning matters that a
sentencing judge may properly consider.
Due process provides no more support for Norvil’s position than do the
provisions of the CPC. Neither the absence of a conviction for the subsequent
crime nor the temporal relationship of that crime with the offense for which
sentence was imposed provide any basis for concluding that due process was
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violated. The Supreme Court has long recognized that due process permits “a
sentencing judge [to] exercise a wide discretion in the sources and types of
evidence used to assist him in determining the kind and extent of punishment to be
imposed within limits fitted by law.” Williams v. People of State of N.Y., 337
U.S. 241, 246 (1949). The Court has “never [called into] doubt[] the authority of a
judge to exercise broad discretion in imposing a sentence within a statutory range.”
United States v. Booker, 543 U.S. 220, 233 (2005).
To put the due process issue in proper perspective, it should be understood
that no due process violation occurs when a sentencing court exercising its
discretion to impose a sentence up to the statutory maximum considers even
acquitted crimes if the commission of those crimes is supported by a
preponderance of the evidence. In United States v. Watts, 519 U.S. 148 (1997),
the Court addressed whether a sentencing court, in sentencing the defendants under
the federal sentencing guidelines, could consider acquitted conduct. The Court
observed that a jury’s acquittal is not a rejection of facts but is merely “ ‘an
acknowledgment that the government failed to prove an essential element of the
offense beyond a reasonable doubt.’ ” 519 U.S. at 155 (quoting United States v.
Putra, 78 F.3d 1386, 1394 (9th Cir. 1996) (Wallace, C.J., dissenting)). Stating that
“application of the preponderance [of the evidence] standard at sentencing
generally satisfies due process[,]” Watts, 519 U.S. at 156, the Court held “that a
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jury’s verdict of acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that conduct has been proved
by a preponderance of the evidence[,]” id. at 157.
Norvil was released on bond pending trial on the offense—armed burglary
of a dwelling—for which he received the sentence at issue here. At the sentencing
proceeding, the State presented evidence showing that while out on bond the
defendant committed the burglary of a vehicle. There is no ground for concluding
that the commission of the burglary of a vehicle offense was not established by a
preponderance of the evidence. And it is indeed a remarkable proposition that a
defendant who has committed an additional crime while out on bond should not
have that subsequent crime held against him when being sentenced for the earlier
offense. Due process does not require the adoption of such a nakedly unreasonable
proposition. The view is unassailable that such a crime committed by a defendant
while out on bond reflects unfavorably on the defendant’s character just as much
as—if not more than—crimes that were committed previously. The character of
the defendant and a concomitant assessment of the likelihood that the defendant
will reoffend are unquestionably proper matters for a sentencing judge to consider
when imposing sentence within the statutory maximum.
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I would approve the result reached by the district court, and I would
disapprove those decisions that are inconsistent with the views I have expressed in
this dissent.
POLSTON, J., concurs.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Fourth District - Case No. 4D11-1740
(Palm Beach County)
Carol Stafford Haughwout, Public Defender, and Patrick Barfield Burke, Assistant
Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Consiglia Terenzio,
Bureau Chief, and Jeanine Marie Germanowicz, Assistant Attorney General, West
Palm Beach, Florida,
for Respondent
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