DONARIUS JAVORIUS JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donarius Johnson appeals his conviction and 12-year sentence for possession of a firearm by a convicted felon. The Fourth District affirmed the conviction but reversed the sentence because the trial court improperly considered Johnson's subsequent pending charges during sentencing, contrary to the Florida Supreme Court's ruling in Norvil v. State.
The court affirmed the conviction and issues one through six, finding no abuse of discretion. However, the court reversed the sentence and remanded for resentencing because the trial court improperly considered Johnson's subsequent pending charges during sentencing, violating the bright-line rule established by the Florida Supreme Court in Norvil v. State (as quashed).
[1] A trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.
[2] An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced.
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Join FLexlaw to unlock all legal intelligence“An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced.”
Established the harmless error standard for the victim's written statement admission
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of possession of a firearm or ammunition by a convicted felon and sentenced to 12 years imprisonment. During sentencing, the tri…
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Appellant, Donarius Johnson, appeals his conviction and twelve-year sentence for one count of possession of a firearm. or ammunition by a convicted felon. On appeal, Appellant argues that the trial court erred by: (1) allowing the State to call the victim as a witness for the primary purpose of impeaching the witness; (2) admitting the victim’s written statement into evidence as a past recollection recorded; (3) admitting the victim’s verbal statements to the responding police officer into evidence; (4) admitting the 911 call into evidence; (5) allowing the State to call a rebuttal witness; (6) allowing the State to delve into the circumstances of the victim’s felony conviction; and (7) considering Appellant’s subsequent, pending ehargés during sentencing.
As to issue two, we agree with Appellant that the trial court erred in admitting the victim’s written statement into evidence as a past recollection recorded. Nonetheless, we hold that the error was harmless beyond a reasonable doubt in light of the other properly admitted evidence. See Witham v. Sheehan Pipeline Constr. Co., 45 So.3d 105, 109 (Fla. 1st DCA 2010) (“An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced.”). As to issues one, three, four, five, and six, we find that the trial court did not abuse its discretion and affirm without further comment. However, as to issue seven, we reverse and remand for resentencing because the trial court relied on impermissible factors during sentencing.
In sentencing Appellant, the trial court, pursuant to our holding in Norvil v. State, heard evidence on, and considered Appellant’s two pending charges, both of which resulted from incidents that took place after Appellant committed the underlying offense in this casé. 162 So.3d 3, 9 (Fla. 4th DCA 2014) (holding “that a sentencing court may properly consider subsequent arrests and related charges, if relevant, in determining an appropriate sentence”), quashed by 191 So.3d 406 (Fla.2016).
During the pendency of this appeal, the Florida Supreme Court quashed our holding in Norvil v. State and announced 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.” 191 So.3d 406, 410 (Fla.2016), quashing 162 So.3d 3 (Fla. 4th DCA 2014). Although Appellant’s sentence falls within the permissible statutory range for the type of crime committed, it cannot be said that the trial court’s consideration of Appellant’s subsequent, pending charges played no part in the twelve-year sentence imposed. See § 790.23(l)(a), (3), Fla. Stat. (2014) (providing that a convicted felon who possesses a firearm commits a felony of the second degree); § 775.082(3)(d), Fla. Stat. (2014) (providing that a felony of the second degree is punishable “by a term of imprisonment not exceeding 15 years”). ,
Accordingly, while we affirm Appellant’s conviction, we reverse his sentence and remand for resentencing. •
Affirmed in part, reversed in part, and remanded with instructions.
WARNER and MAY, JJ., concur.
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Norris Smith v. State, 232 So. 3d 430 (Fla. 4th DCA 2017)…e 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…
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Sharnika Lashay Moore-Bryant v. State, 386 So. 3d 567 (Fla. 4th DCA 2024)…ed to the conviction.” State v. DiGiulio, 491 So. 2d 1129, 1138 (Fla. 1986). “An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced.” Johnson v. State, 204 So. 3d 521, 522 (Fla. 4th DCA 2016) (citation omitted); Liscinsky v. State, 700 So. 2d 171, 172 (Fla. 4th DCA 1997) (“In any event, if such were error, we deem it harmless because the officer’s testimony was merely cumulative of several other witnesses’ testim…
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Kizzie Shanika Styles v. State, 217 So. 3d 1042 (Fla. 4th DCA 2017)…han Pipeline Constr. Co., 45 So. 3d 105, 109 (Fla. 1st DCA 2010) (“An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative to other evidence that was properly introduced.”); see also Johnson v. State, 204 So. 3d 521, 522 (Fla. 4th DCA 2016) (applying the harmless error holding from Witham to a criminal case). Affirmed. May and Conner, JJ., concur.…
Authorities Cited
- Norvil v. State, 191 So. 3d 406 (Fla. 2016)
- Witham v. Sheehan Pipeline Constr. Co. & Zurich Am. Ins. Co., 45 So. 3d 105 (Fla. 1st DCA 2010)
- Norvil v. State, 162 So. 3d 3 (Fla. 4th DCA 2014)
- Zawalski Edwards v. State, 162 So. 3d 3 (Fla. 4th DCA 2014)