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Barnes v. State

Florida Court of Appeals, Fifth District

September 7, 2017

JOHNNY BARNES, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Orange County, Timothy R. Shea, Judge.

          James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

          ORFINGER, J.

         Johnny Barnes, a juvenile at the time of the relevant crimes, appeals his judgments and sentences for second-degree murder and robbery with a firearm.[1] We affirm as to all issues, but write to address Barnes's claim that the trial court erred in considering convictions for crimes committed subsequent to the crimes in this case to support its decision to impose a life sentence and to correct a scrivener's error in the amended sentencing documents.

         Because Barnes was a juvenile at the time he committed these offenses, the trial court conducted an individualized sentencing hearing pursuant to section 921.1401, Florida Statutes (2016). At the sentencing hearing, the State filed copies of judgments and sentences in three other cases for crimes that Barnes committed after he committed the crimes in this case.[2] The State conceded that the subsequent convictions could not be scored on the Criminal Punishment Code scoresheet, but argued that the court could consider them in determining whether a life sentence was appropriate. The trial court considered the subsequent convictions and sentenced Barnes to life in prison for the second-degree murder and thirty-five years in prison for robbery. The court found that Barnes was entitled to a judicial review on both convictions after twenty-five years and that the twenty-five-year mandatory minimum applied to both convictions.

         Prior to filing his initial brief, Barnes filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the trial court erred in relying on his subsequent convictions in support of the life sentence and in determining that he was entitled to a judicial review of his thirty-five-year sentence for the robbery conviction after twenty-five years, instead of twenty years under section 947.1402(2)(d). In a written order, the trial court concluded that it properly considered Barnes's subsequent convictions at the individualized sentencing hearing under the juvenile sentencing statutes, but agreed that Barnes was entitled to a review of the thirty-five-year sentence after twenty years.[3]

         Barnes is correct that, under the Criminal Punishment Code, a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense. Norvil v. State, 191 So.3d 406, 410 (Fla. 2016). But Barnes's reliance on Norvil is misplaced. Barnes is a juvenile offender and subject to the new statutes enacted for sentencing juveniles convicted as adults. These statutes allow the trial court to consider the juvenile offender's "youth and its attendant characteristics, " including the juvenile's immaturity, lack of judgment, and possibility of rehabilitation in determining whether to impose a life sentence. § 921.1401(2), Fla. Stat. (2014). At a minimum, Barnes's subsequent criminal behavior with convictions is relevant to the possibility of his rehabilitation. Id. § 921.1401(2)(j). His subsequent criminal behavior is equally relevant to help the trial court determine his "immaturity, impetuosity, or failure to appreciate risks and consequences" in participating in the offense and "[t]he effect, if any, of characteristics attributable to the defendant's youth on the defendant's judgment." Id. § 921.1401(2)(e), (i). Simply put, his subsequent arrests with convictions may help the sentencing court determine whether Barnes was a juvenile offender whose crimes reflect "transient immaturity, " thereby warranting a lesser sentence, or that "rare" juvenile offender whose crimes reflect "irreparable corruption, " thereby warranting a life sentence. See Horsley v. State, 160 So.3d 393, 397 (Fla. 2015) (citing Miller v. Alabama, 567 U.S. 460, 479-80 (2012)).

         However, we agree, and the State concedes, that the amended sentencing documents contain a scrivener's error as to the judicial review period for count two, which should be corrected to conform to the trial court's written order granting Barnes's rule 3.800(b)(2) motion. We remand the case to the trial court to correct the scrivener's error on the amended sentencing documents dated January 26, 2017. See Taylor v. State, 120 So.3d 213, 213 (Fla. 5th DCA 2013). Barnes need not be present for entry of the corrected sentence.

         AFFIRMED and REMANDED with instructions.

          COHEN, CJ and BERGER, J, concur

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