        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                            RAYMOND HILLARY,
                                Appellant,

                                        v.

                             STATE OF FLORIDA,
                                  Appellee.

                                No. 4D16-2991

                             [December 13, 2017]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; James W. McCann, Judge; L.T. Case No.
562015CF001673A.

  Antony P. Ryan, Regional Counsel, and Paul O’Neil, Assistant Regional
Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm
Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T.
Acuña, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

   Appellant, Raymond Hillary, appeals his sentence for one count of
possession of cocaine and one count of driving without a license. 1 Because
the record conclusively establishes that the trial court considered a
subsequent arrest without conviction when sentencing Appellant, we are
required to reverse pursuant to Norvil v. State, 191 So. 3d 406, 407 (Fla.
2016).

   After being arrested and charged with one count of possession of
cocaine and one count of driving without a license in the underlying case,

1 In addition to appealing the legality of his sentence, Appellant also appeals the
court’s denial of his motion to withdraw his underlying plea. However, in his
Initial Brief, Appellant represented that he wished to abandon his arguments
concerning the court’s ruling on his motion to withdraw plea in the event that we
determine he is entitled to resentencing. Because we hold that Appellant must
be resentenced, we will not address his withdrawal of plea issue.
Appellant entered a plea of not guilty and was released on bond. While
out on bond, Appellant was arrested and charged with another offense in
an unrelated case. Shortly thereafter, Appellant changed his plea in the
underlying case to no contest.

   At Appellant’s change of plea hearing, the State announced that it was
not seeking a Habitual Felony Offender (“HFO”) sentence although
Appellant was HFO eligible. Based on the State’s representation, the court
did not confirm that Appellant was aware of the possibility and reasonable
consequences of habitualization during its plea colloquy with Appellant.
Following the colloquy, the court accepted Appellant’s plea and proceeded
to sentencing. Although Appellant only scored 37.4 months on his
scoresheet, based in large part on the pending charge Appellant accrued
while out on bond in the underlying case, the court sentenced Appellant
to concurrent sentences of five years in prison on the possession charge
and two years in prison followed by two years of probation on the driving
without a license charge.

   In Norvil, which was issued after Appellant was sentenced, the Florida
Supreme Court held that a defendant’s subsequent arrest without
conviction is an improper factor for the trial court’s consideration when
sentencing the defendant for the primary offense. 191 So. 3d at 410. In
this case, by its own admission, the court considered Appellant’s
subsequent arrest without conviction when sentencing Appellant for the
primary offenses. Accordingly, based on Norvil, there is no question that
Appellant’s sentence was based on the court’s consideration of an
improper factor. Id.

    Although it is evident the court considered an improper factor when
sentencing Appellant, the State argues that Appellant is precluded from
seeking appellate relief because he failed to object to the court’s
consideration of his subsequent arrest at sentencing or secure a ruling on
the issue via a Florida Rule of Criminal Procedure Rule 3.800(b) motion.
The State is incorrect. “[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. Fernandez
v. State, 212 So. 3d 494, 496 (Fla. 2d DCA 2017); see also Jackson v. State,
983 So. 2d 562, 574 (Fla. 2008) (clarifying that an appellate court may not
review a “sentencing error,” even if fundamental, for the first time on
appeal but may review an error in the “sentencing process” for
fundamental error on appeal). Norvil establishes that “consideration of
subsequent charges with which the defendant has not been convicted
violates due process” and, therefore, creates a fundamental error in the
sentencing process. Fernandez, 212 So. 3d at 496 (citing Norvil, 191 So.

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3d at 410) (reversing and remanding for resentencing based on the trial
court’s improper consideration of subsequent arrest without conviction
during sentencing despite the fact that the defendant did not raise the
issue below). Accordingly, because Appellant has identified a fundamental
error in the sentencing process via the court’s consideration of a
constitutionally impermissible sentencing factor, this Court may grant
Appellant the requested relief regardless of the fact that Appellant failed to
object below or secure a Rule 3.800(b) ruling.

     Based on the foregoing, we reverse and remand for resentencing before
a different judge. Id. at 497. Additionally, we note that upon resentencing,
Appellant may not be resentenced as an HFO since the court did not
mention the possibility of an HFO sentence or its implications during
Appellant’s plea colloquy. Ashley v. State, 614 So. 2d 486, 490 (Fla. 1993)
(“[I]n order for a defendant to be habitualized following a guilty or nolo
plea, the following must take place prior to acceptance of the plea: 1) The
defendant must be given written notice of intent to habitualize, and 2) the
court must confirm that the defendant is personally aware of the
possibility and reasonable consequences of habitualization.” (footnote
omitted)).

   Reversed and remanded.

WARNER and TAYLOR, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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