NORRIS SMITH v. STATE OF FLORIDA, 15-0518

Defendant was charged with two counts of robbery with a weapon/firearm; counts were severed and he was tried on one count; jury convicted him.
At sentencing, the presentence report referenced a separate, pending third criminal charge (not yet tried or convicted).
The assistant state attorney for the third charge attended sentencing and gave general information about that pending charge.
During oral sentencing the trial court asked about and discussed specifics of the third charge, suggesting it involved an armed sexual battery and robbery at the same location.
The court imposed a 30-year prison sentence.
Defendant appealed, asserting several errors; the Fourth District affirmed the conviction but found error in the court’s consideration of the subsequent, unadjudicated charge and vacated the sentence, remanding for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a trial court may consider a subsequent, untried arrest/charge at sentencing for the primary offense	State: court’s discussion of the pending charge did not necessarily affect sentencing; consideration permissible	Defendant: sentencing court improperly relied on a subsequent arrest/charge not resulting in conviction	Court: Under Norvil, a court may not consider a subsequent arrest without conviction; because the court discussed the pending charge and the State did not show it was not relied on, sentence vacated and remanded for resentencing
Whether conviction should be reversed for sentencing error	State: sentencing error does not require vacating conviction	Defendant: sentencing tainted and requires relief	Court: conviction affirmed; only sentence vacated and remanded
Whether the Norvil bright-line rule applies when sentence is within statutory limits	State: statutory-limit sentence is valid despite discussion of subsequent charge	Defendant: Norvil prohibits considering subsequent arrests regardless of sentence length	Court: Norvil applies regardless of statutory limits; vacatur required
Burden on State to show sentencing not influenced by subsequent charge	State: argued it did not rely on the pending charge	Defendant: duty on State to prove the sentencing court did not rely on the subsequent arrest	Court: State failed to meet burden to show the court did not rely on the pending charge

Norvil v. State, 191 So. 3d 406 (Fla. 2016) (Florida Supreme Court: trial courts may not consider a subsequent arrest without conviction when sentencing for the primary offense)
Johnson v. State, 204 So. 3d 521 (Fla. 4th DCA 2016) (vacated sentence and remanded where sentencing court considered subsequent crimes despite sentence being within statutory limits)