FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pasco County; Pat Siracusa, Judge.
L. Dimmig, II, Public Defender, and Richard J. Sanders,
Assistant Public Defender, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Lisa Martin,
Assistant Attorney General, Tampa, for Appellee.
Love challenges his concurrent sentences of twelve years in
prison imposed after a jury convicted him of carjacking and
robbery. Love argues that his due process rights were
violated because the State presented evidence of
impermissible sentencing factors and his sentence may have
been based, at least in part, on those impermissible factors.
We agree and reverse for resentencing.
sentencing hearing, the defense noted that the State would be
"bringing a number of witnesses" to show that Love
"runs with people that are allegedly members of
gangs." Defense counsel objected on the basis that
"it wasn't proven at trial." The defense then
argued for a sentence close to the bottom of the guidelines.
Love's lowest permissible sentence was 39.75 months-3.31
years-in prison. The trial court then heard from Love's
father and mother.
State argued for a sentence of fifteen years in prison and
then introduced the testimony of several detention deputies
from the jail. The first deputy testified that Love was
involved in a physical altercation with other inmates at the
jail. A second deputy testified that he found papers in
Love's cell indicating that he was "affiliated with
the Latin Kings, which is a known gang in the jail." A
third deputy testified that Love was involved in a battery at
the jail, and defense counsel objected "to this as being
part of the basis for sentencing" because there had not
"been any Williams Rule notice" and this
was an "unrelated crime." The trial court overruled
the objection. A fourth deputy testified that on one
occasion, Love and other inmates refused to comply with the
deputy's order for the inmates to return to their cells.
They only returned to their cells after the deputy
"sprayed them, " and the inmates were "all
gang members." The State called a fifth law enforcement
officer to testify regarding a report she had prepared about
Love, his qualifications as a gang member, and his recent
associates. Defense counsel objected on the basis of hearsay,
and the trial court sustained the objection. The State also
read a written statement from the victim in which she
described the negative impact the offenses had on her life
and she asked the trial court "to impose the maximum
sentences as requested by the prosecutors."
trial court adjudicated Love guilty. Looking at the
scoresheet, the trial court stated it would not consider a
pending charge of grand theft of a motor vehicle
"because it's not resolved." The trial court
then imposed the concurrent twelve-year sentences without any
appeal, Love argues that the State presented evidence
intended to prove that Love committed new crimes and other
misconduct while in jail awaiting trial on these charges and
that it is reasonable to conclude that Love's sentences
resulted in part from the trial court's consideration of
Norvil v. State, 191 So.3d 406, 410 (Fla. 2016), the
supreme court established a "bright line rule for
sentencing purposes: a trial court may not consider a
subsequent arrest without conviction during sentencing for
the primary offense." This court held that the type of
error addressed in Norvil is fundamental error that
may be considered on appeal despite a lack of objection
below. Fernandez v. State, 212 So.3d 494, 496 (Fla.
2d DCA 2017). In Fernandez, this court reversed for
resentencing because "[t]he State has the burden 'to
show that the trial court did not rely on the pending charge
resulting from the subsequent arrest, ' "
id. at 497 (quoting Norvil, 191 So.3d at
409), and the trial court had explicitly stated that the
sentence was at least in part based on a new offense,
defense counsel objected to the State's presenting
evidence "about Mr. Love's associations, that he
runs with people that are allegedly members of gangs" on
the basis that it was not proven at trial and again when the
State offered evidence of an "unrelated crime." To
the extent that these objections were insufficient to
preserve the issue for appeal, Fernandez establishes
that an objection was not necessary.
though there is no indication that Love was arrested for or
charged with the incidents at the jail, the reasoning in
Norvil applies here. Indeed, prior to
Norvil, this court held that incidents of misconduct
occurring after the charged offense, some of which did not
result in charges or arrests, were impermissible sentencing
factors. Mosley v. State, 198 So.3d 58, 59-60 (Fla.
2d DCA 2015). This case turns on the question of how the
State meets its burden of "show[ing] that the trial
court did not rely on the" evidence of Love's
misconduct at the jail. Fernandez, 212 So.3d at 497
(quoting Norvil, 191 So.3d at 409). In
Fernandez, the State did not meet its burden where
the trial court had explicitly referred to the new offense
before imposing sentence. Id. at 496. In
Norvil, the State did not meet its burden because
"the trial court emphasized and relied upon the
subsequent arrest and its related charge . . . in sentencing
Norvil on the primary offense." 191 So.3d at 409. In
Mosley, this court explained that
[t]he State bears the burden to show from the record as a
whole that the trial court did not consider impermissible
factors in rendering its sentence. Nusspickel v.
State, 966 So.2d 441, 444-45 (Fla. 2d DCA 2007). We must
examine the record to determine whether it "may
reasonably be read to suggest" that a defendant's
sentence was the result, at least in part, of the