         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

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


JOHNNY MACK BROWN, JR.,

             Appellant,

v.                                                     Case No. 5D16-3489

STATE OF FLORIDA,

             Appellee.


________________________________/

Opinion filed August 18, 2017

Appeal from the Circuit Court
for Brevard County,
Robin C. Lemonidis, Judge.

James S. Purdy, Public Defender, and Jeri
Delgado, Assistant Public Defender,
Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Appellant, Johnny Mack Brown, Jr., appeals the sentence imposed after a jury

found him guilty of one second-degree felony and several misdemeanors. Appellant

argues that the trial court improperly considered a pending charge at sentencing, without
receiving evidence, when the court repeatedly emphasized the charged conduct during

the sentencing hearing, indicated that it believed the conduct occurred, and appeared to

rely on the conduct, in part, to justify the sentence.

       In Norvil v. State, the Florida Supreme Court announced that "a trial court may not

consider a subsequent arrest without conviction during sentencing for the primary

offense." 191 So. 3d 406, 410 (Fla. 2016). The Court did so based upon its interpretation

of the Criminal Punishment Code and section 921.231, Florida Statutes, regarding

presentence investigation reports. We are bound by Norvil's interpretation of these

statutes absent an amendment by the Legislature.

       "If portions of the record reflect that the trial court may have relied upon

impermissible considerations in imposing sentence, the State bears the burden to show

from the record as a whole that the trial court did not rely on such impermissible

considerations." Nusspickel v. State, 966 So. 2d 441, 444-45 (Fla. 2d DCA 2007). Given

the record here, the State has not carried its burden. Accordingly, we reverse the

sentence and remand for re-sentencing before a different judge. See McGill v. State, 148

So. 3d 531 (Fla. 5th DCA 2014).

       REVERSED and REMANDED.


COHEN, C.J., BERGER and EISNAUGLE, JJ., concur.
BERGER, J., concurs specially, with opinion, in which EISNAUGLE, J., concurs.




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BERGER, J., concurring specially, with opinion.                                   5D16-3489

       I concur in the opinion based solely on the Florida Supreme Court’s recent decision

in Norvil v. State, 191 So. 3d 406, 407 (Fla. 2016). In Norvil, the supreme court relied on

the Legislature’s directive in chapter 921, Florida Statutes, (2010) when it held that a trial

court may not consider a subsequent arrest without conviction during sentencing for the

primary offense. Id. at 407-09. The court concluded:

              [T]he 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. See
              Koster v. Sullivan, 160 So. 3d 385, 390 (Fla. 2015) (“Florida
              courts are ‘without power to construe an unambiguous statute
              in a way which would extend, modify, or limit, its express
              terms or its reasonable and obvious implications. To do so
              would be an abrogation of legislative power.’”) (quoting Holly
              v. Auld, 450 So. 2d 217, 219 (Fla. 1984)).

Id. at 409.

       In light of this holding, I would urge the Legislature to amend section 921.231(1),

to include subsequent arrests and their related charges as permissible sentencing factors.

As Justice Canady aptly noted in his well-reasoned dissent:

              [I]t is indeed a remarkable proposition that a defendant who
              has committed an additional crime while out on bond should
              not have that subsequent crime held against him when being
              sentenced for the earlier offense. Due process does not
              require the adoption of such a nakedly unreasonable
              proposition. The view is unassailable that such a crime
              committed by a defendant while out on bond reflects
              unfavorably on the defendant's character just as much as—if
              not more than—crimes that were committed previously. The
              character of the defendant and a concomitant assessment of
              the likelihood that the defendant will reoffend are
              unquestionably proper matters for a sentencing judge to



                                              3
             consider when imposing sentence within the statutory
             maximum.

Norvil, 191 So. 3d at 411.

EISNAUGLE, J., concurs.




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