Johnny M. Brown, Jr. v. State, 225 So. 3d 947

Appellant Johnny Mack Brown, Jr. was convicted by a jury of one second-degree felony and multiple misdemeanors.
At sentencing the trial court discussed and emphasized conduct for which Brown had been subsequently arrested but not convicted.
Brown argued the court improperly considered the pending (subsequent) charge without receiving evidence of conviction.
The State defended the sentence, but the record showed the court repeatedly referenced the charged conduct and indicated belief that it occurred.
The Fifth District applied Florida Supreme Court precedent limiting consideration of subsequent arrests at sentencing and concluded the State did not prove the court did not rely on the impermissible factor.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial court may consider a subsequent arrest (not resulting in conviction) at sentencing for the primary offense	Brown: court improperly relied on pending charge without conviction, violating Norvil and sentencing statutes	State: sentencing choice justified; any reference to pending charge did not affect sentence outcome	The court reversed and remanded for resentencing before a different judge because the record suggests impermissible reliance on a subsequent arrest and the State failed to show otherwise

Norvil v. State, 191 So. 3d 406 (Fla. 2016) (Florida Supreme Court held a trial court may not consider a subsequent arrest without conviction at sentencing)
Nusspickel v. State, 966 So. 2d 441 (Fla. 2d DCA 2007) (State bears burden to show court did not rely on impermissible considerations)
McGill v. State, 148 So. 3d 531 (Fla. 5th DCA 2014) (remand for resentencing before a different judge where improper considerations may have influenced sentence)
Koster v. Sullivan, 160 So. 3d 385 (Fla. 2015) (courts must not construe unambiguous statutes to extend or modify their terms)
Holly v. Auld, 450 So. 2d 217 (Fla. 1984) (principle that courts should not override unambiguous legislative text)