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Fox v. State

Florida Court of Appeals, Fourth District

October 2, 2019

DAVID FOX, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 502016CF002371A.

          Carey Haughwout, Public Defender, and Stacey Kime, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

          Gerber, J.

         In this appeal, the defendant primarily argues that the circuit court, in sentencing him for the instant crimes, violated Norvil v. State, 191 So.3d 406 (Fla. 2016), by considering a collateral crime which the defendant committed before the instant crimes, but for which the defendant was not convicted until after he committed the instant crimes.

         The state argues that Norvil is inapplicable. According to the state, although the defendant was not convicted of the collateral crime until after he committed the instant crimes, he nevertheless committed his collateral crime before committing the instant crimes, and was convicted of his collateral crime before he was sentenced for the instant crimes.

         We agree with the state's argument. We hold that if a defendant commits, but is not convicted of, a collateral crime before committing the instant crimes, the sentencing court still may consider the collateral crime in rendering sentence for the instant crimes, if the defendant has been convicted of the collateral crime before sentencing for the instant crimes. Therefore, we affirm the defendant's sentence for the instant crimes.

         We present this opinion in three parts:

1. an examination of Norvil;
2. the parties' arguments in this case; and
3. our review, based on the Criminal Punishment Code and precedent.

         1. An Examination of Norvil

         In Norvil, the defendant entered an open plea to the charge of armed burglary of a dwelling. Id. at 407. Before sentencing, the state recommended that the court consider a new charge against the defendant for burglary of a vehicle, which the defendant allegedly committed while he was on pre-trial release for the burglary of a dwelling charge. Id. Defense counsel objected to the state's recommendation. Id.

         The trial court, in pronouncing sentence on the armed burglary of a dwelling charge, referred to the new burglary of a vehicle charge, noting that the arrest for the new charge occurred while the defendant was on pre-trial release. Id. at 408.

         Upon the defendant's ultimate appeal to our supreme court, the issue was framed as "whether the trial court violated the defendant's due process rights by considering a subsequent arrest without conviction during ...


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