Fernandez v. State
212 So. 3d 494
| Fla. Dist. Ct. App. | 2017Background
- Caleb Fernandez was convicted of possession of cocaine and sentenced to 40 months' imprisonment; he appealed his sentence (conviction affirmed).
- At sentencing the trial judge stated the sentence was imposed in part "based on the fact that you re‑offended—but the possession of a firearm by a convicted felon was subsequent to his release," referring to an arrest for felon in possession that occurred while Fernandez was on pretrial release and before conviction on that charge.
- Fernandez had not been convicted of the subsequent felon‑in‑possession charge at the time of sentencing.
- The State argued the subsequent arrest was relevant and should be considered; the trial court's comments indicate it relied at least in part on that arrest.
- Fernandez did not object at sentencing or litigate the matter via rule 3.800(b); therefore the appellate review is limited to fundamental error review.
Issues
| Issue | Plaintiff's Argument (Fernandez) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether a trial court may consider a subsequent arrest (without conviction) at sentencing for the primary offense | Trial court erred by relying on the subsequent arrest; Norvil prohibits such consideration and it violates due process | The subsequent charge was relevant and the court did not actually rely on it | Court held Norvil bars consideration of subsequent arrests without conviction and that doing so violates due process; sentencing error requires reversal |
| Whether Fernandez preserved the sentencing challenge for appeal | Although not preserved, the error is one of constitutional dimension and thus fundamental | The issue was unpreserved and should be reviewed only for fundamental error; State contends the court didn’t rely on the charge | Court concluded Norvil presents a constitutional due‑process issue and Fernandez may raise it on appeal despite lack of contemporaneous objection |
| Who bears burden to show the court did not rely on the subsequent charge | Fernandez argued State must show the court did not rely on the arrest | State argued the court’s statements did not demonstrate reliance | Court held the State bears the burden and, given the trial judge’s explicit statement, the State failed to show the court did not rely on the pending charge |
| Remedy when an impermissible factor was considered at sentencing | Fernandez requested resentencing before a different judge | State did not oppose resentencing before a different judge | Court ordered resentencing and directed it be before a different judge |
Key Cases Cited
- Norvil v. State, 191 So. 3d 406 (Fla. 2016) (establishes bright‑line rule: trial court may not consider subsequent arrest without conviction at sentencing and frames it as preserving due process)
- Jackson v. State, 983 So. 2d 562 (Fla. 2008) (explains appellate review of unpreserved sentencing error limited to fundamental error)
- Yisrael v. State, 65 So. 3d 1177 (Fla. 1st DCA 2011) (holds consideration of constitutionally impermissible sentencing factor is fundamental error)
- Gray v. State, 964 So. 2d 884 (Fla. 2d DCA 2007) (State must show trial court did not consider pending charge; reversal where it failed to do so)
- Williams v. State, 164 So. 3d 739 (Fla. 2d DCA 2015) (finding fundamental error and denial of due process when impermissible sentencing factors are considered)
- Hayes v. State, 150 So. 3d 249 (Fla. 1st DCA 2014) (discusses reviewability of sentencing errors)
- Brown v. State, 27 So. 3d 181 (Fla. 2d DCA 2010) (remand for resentencing is appropriate when impermissible factors influenced sentence)
- Bracero v. State, 10 So. 3d 664 (Fla. 2d DCA 2009) (supports resentencing before a different judge where impermissible factors were considered)