DAVID FOX v. STATE OF FLORIDA ( 2019 )


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  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    DAVID FOX,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    No. 4D18-1374
    [October 2, 2019]
    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
    sentencing for the primary offense.” 
    Id.
     (emphasis added).
    The supreme court held that “a trial court may not consider a
    subsequent arrest without conviction during sentencing for the primary
    offense.” 
    Id. at 407
     (emphasis added). The supreme court reasoned:
    The [Criminal Punishment Code] embodies the principles
    that:
    [t]he primary purpose of sentencing is to punish the
    offender. Rehabilitation is a desired goal of the criminal
    justice system but is subordinate to the goal of
    punishment. The penalty imposed is commensurate
    with the severity of the primary offense and the
    circumstances surrounding the primary offense. The
    severity of the sentence increases with the length and
    nature of the offender’s prior record.
    § 921.002(1)(b), (c), and (d), Fla. Stat. (2010) . . . .
    2
    In the present case, the record reflects that the sentencing
    judge ordered a presentencing investigation (PSI) report
    pursuant to § 921.231(1), Fla. Stat. (2010). The purpose of
    the PSI report is to provide the sentencing court with
    information that is helpful in determining the type of sentence
    that should be imposed. Fla. R. Crim. P. 3.712(a). This report
    must include, inter alia, the offender’s prior record of arrests
    and convictions. § 921.231(1)(c), Fla. Stat. (2010). In other
    words, by definition, the arrests and convictions considered by
    a trial judge in sentencing occur “prior to the time of the primary
    offense,” and not subsequent to the primary offense. §
    921.0021(5), Fla. Stat. (2010).         Additionally, the terms
    “primary offense” and “prior record,” which are included in the
    CPC’s sentencing principles, do not include a subsequent
    arrest and its related charges. See §§ 921.0021(4)(5), Fla.
    Stats. (2010).
    With regard to the sentencing criteria enunciated in
    chapter 921, along with its applicable definitions, we conclude
    that the CPC is unambiguous concerning the factors a trial
    court may consider in sentencing a defendant.               The
    Legislature included prior arrests as information that is
    helpful in imposing the appropriate sentence for a defendant.
    § 921.231(1)(c), Fla. Stat. (2010). However, if the Legislature
    had intended to include subsequent arrests and their related
    charges as permissible sentencing factors, it would have done
    so. . . .
    The record demonstrates that the trial court relied on the
    subsequent arrest and charge, which [the defendant] denied
    and also had not been tried for, in imposing sentence in the
    present case. . . . Even though the record shows that the
    prosecutor did not go into detail about the evidence in the
    burglary of a vehicle charge . . . based on the trial court’s
    comments, the trial court emphasized and relied upon the
    subsequent arrest and its related charge of burglary of a
    vehicle in sentencing [the defendant] on the primary offense.
    Accordingly, the State failed to show that the trial court did
    not rely on the pending charge resulting from the subsequent
    arrest for burglary of a dwelling. Furthermore, chapter 921 is
    unambiguous and specifically states that prior arrests and
    convictions, not subsequent arrests and their related charges,
    are appropriate sentencing considerations. In conclusion, we
    3
    adopt the following bright line rule for sentencing purposes:
    a trial court may not consider a subsequent arrest without
    conviction during sentencing for the primary offense. This rule
    is consistent with the Criminal Punishment Code, and it
    preserves a defendant’s due process rights during sentencing.
    Id. at 409-10 (emphases added).
    2. The Parties’ Arguments in this Case
    Here, the defendant primarily relies upon one of the emphasized
    sentences of Norvil quoted above – “by definition, the arrests and
    convictions considered by a trial judge in sentencing occur ‘prior to the time
    of the primary offense,’ and not subsequent to the primary offense” – to
    argue that even though he committed his collateral crime before
    committing the instant crimes, the collateral crime could not be considered
    by the sentencing court for the instant crimes, because he was not
    convicted of the collateral crime until after he committed the instant
    crimes. Further, the defendant argues, because section 921.231(1)(c) does
    not mention “subsequent convictions for prior arrests,” it is improper for
    a sentencing court to consider “subsequent convictions for prior arrests”
    in rendering sentence. Thus, the defendant argues, “[t]o constitute a valid
    sentencing factor, the collateral conviction must precede the date of the
    primary offense.”
    The state responds that Norvil is distinguishable because Norvil
    involved a “subsequent arrest without conviction.” Here, however, the
    defendant committed his collateral crime before committing the instant
    crimes, and was convicted for his collateral crime before he was sentenced
    for the instant crimes. According to the state, while Norvil did “lump”
    arrests and convictions together in the quote above upon which the
    defendant relies, Norvil did not hold that both arrest and conviction for the
    collateral crime must have been completed before a defendant commits a
    subsequent crime. Rather, the state argues, a sentencing court may
    consider a collateral crime if two conditions exist: (1) the defendant
    committed the collateral crime before committing the instant crimes; and
    (2) the defendant has been convicted of the collateral crime before being
    sentenced for the instant crimes.
    3. Our Review
    Although the defendant did not raise his argument in this appeal at
    sentencing or via a Florida Rule of Criminal Procedure 3.800(b) motion,
    the defendant’s argument, if correct, would be reviewable for the first time
    4
    on appeal as fundamental error. Cf. Hillary v. State, 
    232 So. 3d 3
    , 4-5 (Fla.
    4th DCA 2017) (“[A] trial court’s consideration of a constitutionally
    impermissible sentencing factor is a fundamental error in the sentencing
    process which is reviewable for the first time on direct appeal.”) (citation
    and internal quotation marks omitted).           Thus, our review of the
    defendant’s argument is de novo. See also Charles v. State, 
    204 So. 3d 63
    ,
    67 (Fla. 4th DCA 2016) “[W]hen a trial court relies on impermissible factors
    in sentencing a defendant, the court violates the defendant’s due process
    rights. The standard of review is de novo.”) (citations omitted).
    We conclude that no error occurred, much less fundamental error. As
    the state argues, Norvil is distinguishable because Norvil involved a
    “subsequent arrest without conviction.” Here, however, the defendant
    committed his collateral crime before committing the instant crimes, and
    was convicted for his collateral crime before he was sentenced for the
    instant crimes. As the state argues, although Norvil did “lump” arrests
    and convictions together in the quote upon which the defendant relies, we
    presume such language was directed to the factual situation at issue in
    Norvil, that is, a “subsequent arrest without conviction.”
    Thus, the question with which we are faced is: If a defendant commits,
    but is not convicted of, a collateral crime before committing the instant
    crimes, may the sentencing court still 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?
    We answer the question in the affirmative. 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.
    We reach our holding based on the Criminal Punishment Code and case
    precedent. We address each in turn.
    a. The Criminal Punishment Code
    As Norvil indicates, the Criminal Punishment Code permits a
    sentencing court to consider, among other things, an offender’s “prior
    record.” 191 So. 2d at 409 (citation omitted). The Criminal Punishment
    Code defines “prior record” as “a conviction for a crime committed by the
    offender, as an adult or a juvenile, prior to the time of the primary offense.”
    § 921.0021(5), Fla. Stat. (2016).
    5
    We apply the “last antecedent doctrine” to conclude that section
    921.0021(5)’s antecedent phrase, “committed by the offender, as an adult
    or juvenile, prior to the time of the primary offense,” modifies only the
    immediately preceding term – “crime” – and not the earlier preceding term
    “conviction.” See Kasischke v. State, 
    991 So. 2d 803
    , 811 (Fla. 2008)
    (under the last antecedent doctrine, “relative and qualifying words,
    phrases and clauses are to be applied to the words or phrase immediately
    preceding, and are not to be construed as extending to, or including,
    others more remote . . . only where no contrary intention appears”)
    (citations and internal quotation marks omitted).
    Thus, as the state argues, for a collateral crime to be considered a “prior
    record” during sentencing for the primary offense, two conditions must
    exist: (1) the defendant committed the collateral crime before committing
    the primary offense; and (2) the defendant has been convicted of the
    collateral crime before being sentenced for the primary offense. It is not
    necessary that the defendant be convicted of the collateral crime before
    the defendant has committed the primary offense.
    b. Precedent
    Our conclusion is supported by an opinion on a very similar issue from
    the First District in Hawkins v. State, 
    162 So. 3d 1099
     (Fla. 1st DCA 2015).
    In Hawkins, the defendant was first charged with collateral crimes. Id.
    at 1100. While on pre-trial release, the defendant was charged with new
    crimes, i.e., the primary offenses. Id. The defendant was sentenced on
    the collateral crimes before sentencing on the primary offenses. Id. At
    sentencing on the primary offenses, the Criminal Punishment Code
    scoresheet included the collateral crimes as part of the defendant’s prior
    record. Id.
    On appeal to the First District, the defendant argued that the
    scoresheet improperly included the collateral crimes as part of his prior
    record because, though he committed the collateral crimes before
    committing the primary offenses, he was not convicted of the collateral
    crimes until after he committed the primary offenses. Id.
    The First District concluded that the scoresheet properly included the
    collateral crimes, because the defendant committed the collateral crimes
    before committing the primary offenses. Id. at 1101. The First District
    based its conclusion both on statutory interpretation and reliance on
    Florida Supreme Court precedent in Thorp v. State, 
    555 So. 2d 362
     (Fla.
    1990). Id. at 1100-01.
    6
    Regarding statutory interpretation, the First District, as we have here,
    applied the last antecedent doctrine:
    Pursuant to statute, “prior record” is defined as “a
    conviction for a crime committed by the offender, as an adult
    or a juvenile, prior to the time of the primary offense.” §
    921.0021(5), Fla. Stat.       The last antecedent doctrine
    determines that the qualifying phrase “prior to the time of the
    primary offense” modifies “crime” rather than “conviction.”
    Thus, to be considered “prior record,” only the crime must
    occur prior to the time of the primary offense.
    Similarly, pursuant to the Florida Rules of Criminal
    Procedure, which defines “prior record” as “any conviction for
    an offense committed by the offender prior to the commission
    of the primary offense,” the last antecedent doctrine
    determines that the qualifying phrase “prior to the
    commission of the primary offense” modifies the word
    “offense” rather than the word “conviction.” Fla. R. Crim. P.
    3.704(d)(14). Thus, again, only the underlying offense must
    occur prior to the commission of the primary offense.
    Id.
    Regarding Florida Supreme Court precedent in Thorp, which addressed
    the same scoresheet issue, but under prior and different rule language,
    the First District stated:
    In Thorp . . . the Florida Supreme Court held that only past
    conduct must occur prior to the commission of the primary
    offense in order to be considered “prior record.” However, the
    definition of “prior record” in 1990 differed: it was defined
    then as “any past criminal conduct on the part of the offender,
    resulting in conviction, prior to the commission of the primary
    offense.” Fla. R. Crim. P. 3.701(d)(5).
    We determine the holding in Thorp, even though
    addressing somewhat different language, still remains good
    law. In Thorp, the court stated, “There is little reason why
    prior record should not include all past crimes for which
    convictions have been obtained before sentencing.” Thorp,
    
    555 So. 2d at 363
    . Nothing in the enactment of the Criminal
    7
    Punishment Code or the new rule language indicates that
    reasoning is any less valid.
    Id. at 1100.
    We agree with the First District’s reasoning on both statutory
    interpretation and reliance on Thorp.
    Conclusion
    Based on the foregoing, 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.
    On the defendant’s second argument, that the sentencing court
    misunderstood whether the defendant pled no contest instead of guilty to
    the collateral crimes, we affirm without further discussion.
    Affirmed.
    WARNER and GROSS, JJ., concur.
    *         *        *
    Not final until disposition of timely filed motion for rehearing.
    8
    

Document Info

Docket Number: 18-1374

Filed Date: 10/2/2019

Precedential Status: Precedential

Modified Date: 10/2/2019