MYKEL ANTHONY NELSON

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D22-0703 LT Case Nos. 2020-CF-001354-A 2020-CF-001355 2020-CF-001390 _____________________________

MYKEL ANTHONY NELSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Citrus County. Richard A. Howard, Judge.

Victoria E. Hatfield, of O’Brien Hatfield Reese, P.A., Tampa, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellee.

January 12, 2024

PRATT, J.

This appeal presents the question whether a trial court may rely on a defendant’s lawful firearm possession in sentencing him. We conclude that it may not. Courts deprive defendants of due

I.

On November³, 2020, a confidential informant bought approximately four ounces of cannabis from Mykel Anthony Nelson in exchange for $500. About a month later, the same confidential informant paid Nelson $1,500 for a pound of the drug. During both transactions, Nelson used his name and his personal cellphone, and the transactions took place at his residence. The confidential informant then negotiated a third, larger transaction for 28 pounds of cannabis, with the purchase to occur on December 10, 2020. That buy never happened. Instead, law enforcement executed a search warrant at the residence and arrested Nelson, who cooperated by informing the officers that they would find cannabis. Officers found 28.998 pounds of the drug in the home. Nelson’s arrest resulted in three criminal cases against him. In total, the State charged him with the following offenses: sale or possession of cannabis with intent to sell, a third-degree felony; unlawful use of a two-way communications device, a third-degree felony; trafficking in cannabis in excess of twenty-five pounds but less than²,000 pounds, a second-degree felony; possession of a place for trafficking, a third-degree felony; and possession of drug paraphernalia, a first-degree misdemeanor. Nelson, who had no prior criminal convictions, pled no contest to all the charges. He and the State agreed that the State would not waive the three-year minimum mandatory prison sentence applicable to the trafficking charge, and that Nelson’s sentence would be capped at 87.23 months, which included the discretionary trafficking enhancement that the court might choose to impose. Thus, the sentencing range with the agreed-upon cap would be between 36 and 87.23 months of incarceration. At the sentencing hearing, the court entertained argument from both Nelson and the State, with Nelson urging the court to impose 36 months, and the State urging the court to impose 87.23

II.

Nelson argues that he is entitled to a new sentencing before a different judge because the trial court committed two fundamental errors. First, Nelson argues that the trial court fundamentally erred by failing to properly consider and address his request for a downward departure. Second, he argues that the trial court fundamentally erred when it relied upon his uncharged, lawful firearm possession in pronouncing his sentence. We need only consider Nelson’s second argument, and we agree that he is entitled to the relief that he seeks. Trial courts generally enjoy wide discretion in sentencing convicted defendants within the range of sentences established by the Legislature. See Nusspickel v. State, 966 So. 2d 441, 444 (Fla. 2d DCA 2007). However, “an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence.” Kenner v. State, 208 So. 3d 271, 277 (Fla. 5th DCA 2016) (quotation marks omitted). Reliance on constitutionally impermissible factors deprives a defendant of due process and

5 DCA 2023) (Pratt, J., concurring, joined by Jay, J.). Nor did it charge him with any firearm-related offense. The State introduced no evidence establishing that Nelson possessed his firearms within the home to further his illicit activities or for any other unlawful purpose. Indeed, at sentencing, the State affirmatively conceded that it had not charged Nelson with armed trafficking, as the firearms were not found near the cannabis. Moreover, Nelson had no prior convictions. In short, not only did the State decline to charge Nelson with a firearm-related offense; the State failed to argue, much less establish by evidence, that his firearm possession constituted anything other than the lawful exercise of his constitutional right to keep and bear arms “in defense of hearth and home.” Heller, 554 U.S. at 635. Rather than argue that the court could sentence Nelson based on his lawful firearm possession, the State instead contends that the court did no such thing. The State notes that it introduced only two photographs showing firearms, and that following the court’s statement that “[w]hat hurts you most, Mr. Nelson, was . . . the photographs of the guns,” the court declared, “I did not take that into account.” We are not persuaded. The question before us is not whether the trial court in fact relied upon Nelson’s lawful firearm possession. Instead, we ask only whether “the record reflects that the trial judge may have relied upon impermissible considerations in imposing sentence.” Shelko, 268 So. 3d at 1005 (emphasis added). If the record so reflects, “the State bears the burden to show from the record as a whole that the judge did not rely on such considerations.” Id. The court’s statements indicate that it may have relied upon Nelson’s lawful firearm possession in imposing his sentence, and the State has failed to carry its burden to show otherwise. By declaring that “the photographs of the guns” were “[w]hat hurts [Nelson] most,” the court suggested that it weighed Nelson’s lawful firearm possession against him. At best, the State has shown that the court made two contradictory statements: one that it took the firearm possession into account, and one that it did not. That showing does not suffice. “[W]e cannot ignore the nature and extent of the trial court’s discussion of irrelevant and impermissible factors during the sentencing hearing.” Kenner, 208 So. 3d at 278. ‘‘Because the court’s comments could reasonably be

6 construed as basing the sentence, at least in part, [on impermissible factors], and because we cannot say that the sentence would have been the same without the court’s impermissible consideration of [that factor],” we must “vacate appellant’s sentence and remand for resentencing before a different judge.” Id. (quotation marks omitted).²

III.

If due process prohibits a trial court from relying on “uncharged and unproven crimes” when pronouncing a sentence, Petit-Homme, 284 So. 3d at 1128 (emphasis added), then, a fortiori, it prohibits a trial court from relying on the lawful exercise of a constitutional right. The State has failed to carry its burden to show that the sentencing court did not rely, at least in part, on Nelson’s lawful exercise of his constitutional right to keep and bear arms. Accordingly, we vacate Nelson’s sentences, remand these cases for resentencing, and direct the Chief Judge of the Circuit Court to reassign the cases to a different judge for the resentencing. SENTENCES VACATED; CASES REMANDED WITH INSTRUCTIONS.

EISNAUGLE and HARRIS, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________