ROBERT JOHN SHELKO

v.

STATE OF FLORIDA

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

ROBERT JOHN SHELKO,

Appellant,

v. Case No. 5D18-1162

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed April 26, 2019

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

James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

The sole issue that we address in this case is the not-infrequently-raised claim by defendants that the trial judge in their cases committed fundamental error in considering unsubstantiated allegations of misconduct at a sentencing hearing. Because we

The facts of this case are straightforward and uncomplicated. Robert John Shelko was stopped by a Citrus County Sheriff’s Deputy for failing to maintain his vehicle in a single lane of traffic. During the course of this stop, a canine deputy arrived on the scene, and his dog conducted an exterior search of Shelko’s vehicle. The dog alerted to an odor of narcotics; and, during the subsequent search of the vehicle at the scene, a pipe used to smoke methamphetamine was seized. Shelko was then placed under arrest; and during a search incident to his arrest, two separate baggies of methamphetamine were found in one of Shelko’s pants pockets. The deputies also seized $1300 in cash.

The State charged Shelko with possession of methamphetamine, a third-degree felony, and possession of paraphernalia. Shelko proceeded to trial and was convicted as charged. The trial judge held a sentencing hearing immediately after the jury was discharged. After hearing from Shelko as well as his mother and daughter, and after very brief argument from the prosecutor and defense counsel, the trial judge examined the methamphetamine and thereafter stated: The only thing I can say, Mr. Shelko, dealing with the issue is that is what I called cartel quality meth. This is not shake and bake. And you know what shake and bake is, right? Shake and bake is the cheap stuff that’s made locally.

This is crystal clear methamphetamine, window glass, window pane, crystal. This is cartel quality methamphetamine. It would probably light up every one of you in this room, okay.

And the fact that you had these separate amounts of it and a quantity of cash causes me great consternation.

Shelko argues on appeal that the trial court erred in sentencing when it considered unsubstantiated allegations of misconduct. A trial court commits fundamental error when it considers constitutionally impermissible factors when imposing sentence. See Yisrael v. State, 65 So. 3d 1177, 1177 (Fla. 1st DCA 2011) (citing Nawaz v. State, 28 So. 3d 122, 124–25 (Fla. 1st DCA 2010); Jackson v. State, 39 So. 3d 427, 428 (Fla. 1st DCA 2010)). Furthermore, a defendant’s due process rights are violated when the trial court considers such factors as unsubstantiated allegations of misconduct in sentencing. See McGill v. State, 148 So. 3d 531, 531–32 (Fla. 5th DCA 2014) (citing Crouse v. State, 101 So. 3d 901, 903 (Fla. 4th DCA 2012)).

The trial judge here appears to have based his sentencing decision, at least in part, on what he perceived to be the “cartel quality of the methamphetamine” found in Shelko’s possession. There was absolutely no testimony or evidence presented at trial to suggest Shelko was somehow involved in a drug cartel or acquired the methamphetamine from a distributor for a cartel. In fact, the only evidence at trial was that Shelko acquired this drug “locally.” The State also never argued or suggested that

1 Shelko was also sentenced to a “time served” jail sentence for possession of paraphernalia, which has not been challenged in this appeal.

Where the record reflects that the trial judge may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show from the record as a whole that the judge did not rely on such considerations. See Brown v. State, 225 So. 3d 947, 948 (Fla. 5th DCA 2017) (citing Nusspickel v. State, 966 So. 2d 441, 444–45 (Fla. 2d DCA 2007)). The State has not met its burden here. Accordingly, we reverse Shelko’s sentence and remand for resentencing before a different judge.²

REVERSED and REMANDED for resentencing.

EVANDER, C.J., and BERGER, J., concur.

2 The resentencing before the successor judge is a de novo proceeding. Shelko must be present at the hearing with court-appointed counsel, if he is indigent. Also, our reversal here does not preclude the successor judge from imposing five-year prison sentence or any other lawful sentence that the judge deems appropriate, after his or her proper review of the record, receipt of any further evidence, and argument from the parties.