       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) . . . .



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    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

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      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

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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).


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    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.

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  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.




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