DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NORRIS SMITH,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-0518

[December 13, 2017]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; John D. Fry, Judge; L.T. Case No. 14006323CF10A.

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. 

Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

KUNTZ, J.

The Defendant, initially charged with two counts of robbery with a 

weapon or firearm, successfully moved to sever the counts and proceeded 

to a jury trial on one of the two counts,1 where the jury found him guilty.

At sentencing, defense counsel took issue with the presentence 

investigation report, where the probation officer cited to “a pending open 

case”—one different than the charges in this case—of which the Defendant 

had not yet been tried or convicted. The assistant state attorney 

prosecuting this third charge appeared at sentencing and provided the 

court with general information about the charge. The court proceeded to 

ask questions regarding the specific facts at issue in this other charge, 

such as whether the charges were similar to the crime for which the 

Defendant had been convicted.

While orally sentencing the Defendant, the court discussed this third 

 

1 In a separate proceeding, a jury found the Defendant guilty as charged in Count 

II.
2

charge, stating: “On the eve of the verdict of guilty in [Count I], [the 

Defendant] was charged in a third count or a third charge at the same 

location with the same information of sexual battery—armed sexual 

battery, correct? . . . . And robbery with a firearm.” The court proceeded 

to sentence the Defendant to thirty years’ imprisonment.

On appeal, the Defendant raises multiple issues as to both his 

conviction and his sentence. We find merit only in his argument that the 

trial court erred by considering a crime he had neither been tried for nor 

convicted of at the time of sentencing. Therefore, we affirm his conviction, 

but vacate his sentence and remand for resentencing.

We review the court’s sentence de novo. Norvil v. State, 191 So. 3d 406, 

408 (Fla. 2016). In Norvil, the State recommended the court consider a 

new charge pending against the defendant. Id. at 407. The court inquired 

about the pending charge and “declined to sentence the defendant as a 

youthful offender, and instead sentenced him to twelve years in prison.” 

Id. at 408. We affirmed the court’s consideration of the new charge, but 

the Florida Supreme Court quashed our decision, holding that “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.” Id. at 409 (quoting § 921.0021(5), Fla. Stat. (2010)). The supreme 

court then “adopt[ed] 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.” Id. at 410.

In Norvil, the supreme court stated that “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.” Id. at 409. Here, it is not 

clear that the court actually considered the new crime when sentencing 

the Defendant. However, in light of the court’s comments regarding the 

new crime as it handed down the sentence, the State failed to satisfy the 

burden imposed by Norvil, as it did not show that the court did not rely on 

the new crime when it sentenced the Defendant. 

In light of Norvil, we have since vacated a defendant’s sentence and 

remanded for resentencing when a court considered subsequent crimes, 

even though the sentence was within the statutory limits. Johnson v. 

State, 204 So. 3d 521, 522 (Fla. 4th DCA 2016). We must do the same 

here.

We affirm the Defendant’s conviction. However, due to the court’s 

apparent consideration at sentencing of a subsequent crime for which the 

Defendant had neither been tried nor convicted, we vacate the Defendant’s 
3

sentence and remand for resentencing.

Conviction affirmed, sentence vacated, and remanded for resentencing.

LEVINE and FORST, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.