162 So. 3d 3
Fla. Dist. Ct. App.2014Background
- Norvil pled open to armed burglary of a dwelling; sentencing followed a pending burglary-of-a-vehicle charge.
- State filed a sentencing memorandum urging consideration of the new charge; defense objected.
- At sentencing, the court inquired about the pending charge and heard fingerprint evidence tying Norvil to the vehicle.
- The court commented on two versions of Norvil and sentenced him to 12 years, declining youthful-offender status.
- Norvil challenged the sentence as due process violation for considering pending charges; the appellate court elected en banc review to clarify the law.
- Court ultimately upholds the sentence and confirms that pending charges may be considered if properly relevant and not given undue emphasis; it also addresses plea validity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the plea knowingly and freely entered? | State argues the plea was voluntary with no competency issue. | Norvil contends possible defects in plea knowingly entered; challenge to competency not shown. | Plea entered knowingly, freely, voluntarily; affirmed as to plea withdrawal. |
| May a court consider pending charges at sentencing when related to the defendant's conduct? | State contends pending charges are relevant and permissible sentencing factors. | Norvil argues Seays bars consideration of subsequent arrests at sentencing. | Court may consider pending charges if relevant and not given undue weight; affirmed sentencing. |
| What standard applies to reviewing a sentencing error involving consideration of pending charges? | State relies on standard permitting review of within-range sentencing with de novo aspects for error. | Norvil seeks reversal under due-process grounds for improper consideration. | De novo review applies for sentencing error claims; the sentence upheld. |
| Did the defendant have an opportunity to explain or rebut the pending charges during sentencing? | State asserts defendant could present evidence on prior/subsequent arrests. | Norvil may have limited ability to explain without waiving Fifth Amendment rights. | Defendant had opportunity to explain or present evidence; court did not rely improperly on silence. |
Key Cases Cited
- Seays v. State, 789 So.2d 1209 (Fla. 4th DCA 2001) (reversed sentence for considering pending charge arising from a subsequent arrest)
- Whitehead v. State, 21 So.3d 157 (Fla. 4th DCA 2009) (pending charges may be considered if relevant; defendant given opportunity to explain)
- Dowling v. State, 829 So.2d 368 (Fla. 4th DCA 2002) (sentencing may consider relevant factors under constitutional limits)
- Jansson v. State, 399 So.2d 1061 (Fla. 4th DCA 1981) (prior arrests may be considered if not framed as convictions; defendant may explain)
- Peters v. State, 128 So.3d 832 (Fla. 4th DCA 2013) (cites Seays; discusses subsequent-arrest considerations)
- Epprecht v. State, 488 So.2d 129 (Fla. 3d DCA 1986) (due process burden on the state to show sentencing not impermissibly influenced)
- Doty v. State, 884 So.2d 547 (Fla. 4th DCA 2004) (due process limits on considering conduct of which acquitted)
- Whitehead v. State, 21 So.3d 157 (Fla. 4th DCA 2009) (reiterates permissible consideration of pending charges with caution)