Nelson v. State

1

Mykel Anthony Nelson, Appellant, v. State of Florida, Appellee.

No. 5D2022-0703

Florida Court of Appeals, Fifth District

June 28, 2024

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

On appeal from the Circuit Court for Citrus County LT Case Nos 2020-CF-001354-A, 2020-CF-001355, 2020-CF-001390. 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, and Henry C. Whitaker, Solicitor General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and Christopher J. Baum, Senior Deputy Solicitor General, Tallahassee, for Appellee.

ON REHEARING

PRATT J.

Having requested supplemental briefing from both parties, we sua sponte rehear this appeal. We vacate our opinion dated January 12, 2024, and substitute the following opinion in its place.

In this appeal, we consider whether the trial court fundamentally erred by failing to properly consider a downward departure request or by relying on impermissible sentencing considerations. We conclude that Appellant has not carried his burden to show fundamental error.

I.

On November 3, 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 than 2,000 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 the bottom of the guidelines range with the discretionary trafficking enhancement-87.23 months. 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. Nelson's counsel requested a downward departure to the mandatory minimum of 36 months. The State urged the court to impose an 87.23-month guidelines sentence. During its argument, the State presented two photos of firearms found in Nelson's home, which prompted the court to ask, "[w]hat about the guns in these pictures?" The State responded by noting that Nelson stored other firearms in his home, and that "a possible murder a couple of months ago that was probably related to the sale of cannabis" had occurred in Citrus County. However, the State did not argue that Nelson himself was in any way connected to the murder. The State also did not argue that Nelson possessed his firearms to further his illicit activities or for any other unlawful purpose, and it conceded that it had not charged him with armed trafficking because the firearms were not located near the cannabis.

After hearing a brief rebuttal argument from Nelson's counsel, the court announced Nelson's sentence. The court applied the discretionary trafficking enhancement and sentenced Nelson to 87.23 months of incarceration on counts 1 and 2 (to run concurrently). Immediately after pronouncing this sentence, the court stated:

And what hurts you most, Mr. Nelson, was . . . the photographs of the guns. They did not charge you with those. I did not take that into account; but why you did this, I do not know. I do not know other than sheer greed. But it's punished, it's sanctioned. It could have been so much worse.

The court then imposed three-year sentences on the remaining felony counts, with the sentences to run concurrently with the concurrent 87.23-month sentences.

Nelson has appealed his sentences. We have jurisdiction.

II.

Nelson argues that he is entitled to a new sentencing beforea different judge. First, he argues that the trial court failed to properly consider and address his request for a downward departure.^[1] Second, he argues that the trial court improperly relied upon his uncharged firearm ownership in pronouncing his sentence. Because Nelson failed to assert contemporaneous objections below, we review his claims for fundamental error. See State v. Garcia, 346 So.3d 581, 585 (Fla. 2022).

III.

"A trial court's decision whether to depart from the guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1)." Banks v. State, 732 So.2d 1065, 1067 (Fla. 1999). "Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case." Id. at 1068. "This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion." Id.

When faced with a downward-departure request, the trial court has extremely broad discretion at the second step. See id. ("Discretion is abused only where no reasonable person would agree with the trial court's decision."). But it must exercise that discretion. See id. ("[T]he court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors."). As Nelson points out, the First District has held that a trial court commits fundamental error when it follows an "arbitrary policy not to consider" a lawful, below-guidelines sentence "without any reflection on the merits of [the defendant's] case." Pressley v. State, 73 So.3d 834, 836 (Fla. 1st DCA 2011) (responding to defendant's request for "boot camp," a type of youthful offender sentence, the trial court announced, "[s]ir, I don't do boot camp").

Nothing in the record shows that the trial court failed to follow the Banks analysis, and Nelson thus has failed to demonstrate error (much less fundamental error). Nowhere did the court conclude that it lacked discretion to grant a downward departure. If anything, the sentencing hearing transcript suggests that the trial court did exercise its Banks "step two" discretion. Unlike in Pressley, the court did not announce any arbitrary policy against considering the kind of downward departure that the defendant sought. Rather, the court imposed a guidelines sentence after hearing extensive argument by counsel, and it explained its sentencing decision by pointing to particular facts of Nelson's case. Therefore, it appears that the trial court considered Nelson's downward-departure request and exercised its discretion to deny it. At a minimum, the record provides no basis for us to conclude otherwise. See King v. State, 375 So.3d 389, 395 (Fla. 5th DCA 2023) (noting that the appellant has the "burden to demonstrate error on appeal").

IV.

Nelson next argues that even if the trial court considered his downward-departure request, it relied on impermissible factors in pronouncing his sentence. Of course, 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) (quoting Nawaz v. State, 28 So.3d 122, 124 (Fla. 1st DCA 2010)). As relevant here, "[a] trial court's consideration of unsubstantiated allegations of misconduct in sentencing constitutes a due process violation." Petit-Homme v. State, 284 So.3d 1126, 1128 (Fla. 5th DCA 2019). In short, just as "[d]ue process prohibits an individual from being convicted of an uncharged crime," Morgan v. State, 146 So.3d 508, 512 (Fla. 5th DCA 2014) (emphasis added), it also prohibits him from being sentenced for one based on "unsubstantiated allegations," Shelko v. State, 268 So.3d 1003, 1005 (Fla. 5th DCA 2019).

As a preliminary matter, we note that Nelson devotes a portion of his initial brief to several purportedly impermissible arguments that the State advanced at the sentencing hearing but that the court did not mention when pronouncing the sentence. This focus on the State, rather than the court, misses the mark. "[W]hen determining whether a court relied on impermissible sentencing factors, it is primarily the court's express rationale, not the evidence or arguments presented at sentencing, which controls." Senser v. State, 243 So.3d 1003, 1011 (Fla. 4th DCA 2018). "The mere fact that the court had evidence of a potentially improper factor before it is insufficient to merit reversal." Serrano v. State, 279 So.3d 296, 302 (...