RAYMOND HILLARY v. STATE OF FLORIDA
16-2991
| Fla. Dist. Ct. App. | Dec 13, 2017Background
- Raymond Hillary was charged with possession of cocaine and driving without a license; he pled no contest after initially pleading not guilty and being released on bond.
- While out on bond in the underlying case, Hillary was arrested on an unrelated subsequent charge that did not result in a conviction.
- At the plea hearing the State stated it would not seek a Habitual Felony Offender (HFO) sentence; the court therefore did not confirm Hillary’s awareness of possible habitualization during the plea colloquy.
- At sentencing the court expressly acknowledged considering the subsequent arrest (without conviction) and imposed concurrent prison terms (5 years for possession; 2 years plus 2 years probation for driving without a license), exceeding the scoresheet recommendation.
- After sentencing, the Florida Supreme Court issued Norvil v. State holding that consideration of a subsequent arrest without conviction is an improper sentencing factor violating due process.
- Hillary appealed, arguing the court’s consideration of the subsequent arrest rendered his sentence improper; he abandoned his separate plea-withdrawal challenge because resentencing would moot it.
Issues
| Issue | Hillary's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court improperly considered a subsequent arrest without conviction when sentencing | Court relied on the subsequent arrest; sentencing was tainted | No objection was made below; issue waived or must be raised via Rule 3.800(b) | Court held the record shows the court considered the subsequent arrest; under Norvil this is an improper factor requiring reversal |
| Whether appellate review is barred because Hillary did not object at sentencing or seek Rule 3.800(b) relief | Fundamental error in the sentencing process permits first-time appellate review | Failure to object or seek Rule 3.800(b) precludes relief on appeal | Court held consideration of an impermissible factor is fundamental error and reviewable on direct appeal |
| Whether Hillary can be resentenced as an HFO | N/A (Hillary relied on State’s representation that HFO wouldn’t be sought and plea colloquy lacked HFO advisement) | State might argue HFO eligibility exists regardless | Court held Hillary may not be habitualized on resentencing because the court did not advise him of HFO possibility during plea colloquy |
| Remedy — whether resentencing is required and before whom | Hillary requested resentencing | State likely opposed or argued procedural bar | Court reversed and remanded for resentencing before a different judge |
Key Cases Cited
- Norvil v. State, 191 So. 3d 406 (Fla. 2016) (consideration of a subsequent arrest without conviction violates due process)
- Fernandez v. State, 212 So. 3d 494 (Fla. Dist. Ct. App. 2017) (trial court’s use of an impermissible sentencing factor is fundamental error reviewable on direct appeal)
- Jackson v. State, 983 So. 2d 562 (Fla. 2008) (distinguishing reviewability of sentencing errors versus sentencing-process errors)
- Ashley v. State, 614 So. 2d 486 (Fla. 1993) (requirements for habitualization following a guilty or nolo plea: written notice and court confirmation of defendant’s awareness)