FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Pinellas County; Frank Quesada,
L. Dimmig, II, Public Defender, John C. Fisher and Lisa B.
Lott, Assistant Public Defenders, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and C. Todd Chapman,
Assistant Attorney General, Tampa, for Appellee.
Peter Nichols challenges his sentences for (1) unlawful
sexual activity with a person sixteen or seventeen years of
age (defendant twenty-four years of age or older) and (2)
delivery of a controlled substance to a person under
eighteen, both second-degree felonies. After Nichols entered
an open guilty plea, the trial court imposed consecutive
sentences of thirteen years in prison on each conviction. He
does not challenge his convictions, which we affirm. Nichols
contends that the trial court considered impermissible
factors in sentencing him that amount to fundamental error.
We agree that Nichols is entitled to relief based on one of
the factors. Because the State did not meet its burden to
show that the trial court did not consider an uncharged
homicide in sentencing Nichols, we reverse his sentences and
remand for sentencing before a different judge.
change of plea and sentencing hearing, the prosecutor gave a
factual basis, partially based on Nichols' admissions.
Nichols "picked up" the sixteen-year-old victim on
the Pinellas Trail around 4:00 or 5:00 p.m., and she went to
his residence with him. He offered her Dilaudid, and they
both injected it. He had intercourse with the victim. That
evening she overdosed and died in Nichols' apartment. He
"waited some time" to call 911 and cleaned up the
needles and other items first. The victim had multiple
narcotics in her system, but the State was not arguing that
Nichols had provided the cocaine and other drugs in her
system. It could not be determined that the Dilaudid was a
contributing factor to her death.
counsel asserted that the victim was "smart enough"
to give Nichols a false birthdate that indicated that she was
nineteen. The toxicology report showed she had Valium, Xanax,
cocaine, and opiates in her system and a small amount of
Dilaudid. Defense counsel asserted that the victim was a
chronic drug user. He also acknowledged the victim's
erratic behavior that evening-that "she was obviously
high on something," that she woke up two or three times
and vomited, and that she passed out. By 3:00 or 4:00 a.m.
Nichols found her nonresponsive. Defense counsel referred to
the victim by stating that "a lot of this she brought on
herself." In responding, the trial court stated that
counsel was "talking about a 16-year old child."
told the trial court he was sorry about what had happened to
the victim but that she had lied about her age, although he
knew that was "no excuse in the eyes of the law."
He also asserted that he was "totally honest with the
police from the beginning."
prosecutor informed the trial court that Nichols had served
prison time for trafficking in marijuana, possession of
methamphetamine with intent to sell, and possession of a
controlled substance. He also was on probation when the
current crimes occurred. The prosecutor found it
"extremely aggravating" that Nichols, an adult who
was about forty years old, acknowledged to the police that
the victim had been acting erratic, falling asleep, and then
vomiting on herself but that he waited hours to get help for
her. The prosecutor argued that the victim was "clearly
heavily under the influence of narcotics" and that
Nichols was not acting as the adult when he waited hours to
end of the hearing, the prosecutor stated his position that
the trial court impose "a minimum of 20 years" and
specifically sought fifteen years in prison on count one and
a consecutive five years in prison on count two. The trial
court imposed thirteen years in prison on each count, to be
served consecutively, for a total of twenty-six years in
prison. The sentence of thirteen years on each offense was
just two years below the statutory maximum of fifteen years
for these second-degree felonies. See §§
775.082(3)(d), 794.05(1), 893.13(4)(b), Fla. Stat. (2015).
announcing the sentences, the trial court expressed that it
was appalled that Nichols would try to place blame on the
child victim. The trial court then stated: "And I'm
sure the State would charge the homicide case if they had the
facts to do so. They don't. But we'll never know
really what caused her death other than it was tragic. And
you are the primary cause of her death, period."
contends on appeal that the trial court impermissibly
considered an uncharged offense when the court stated its
belief that Nichols was the primary cause of the victim's
death. When a trial court considers constitutionally
impermissible factors in sentencing a defendant, it
constitutes fundamental error that requires reversal of the
sentence and remand for resentencing. See Challis v.
State, 157 So.3d 393, 396-97 (Fla. 2d DCA 2015)
(reversing and remanding for resentencing on drug trafficking
and possession convictions when the trial court's
"speculation that [the defendant's] actions resulted
in numerous deaths" violated his due process rights);
Shelko v. State, 268 So.3d 1003, 1005-06 (Fla. 5th
DCA 2019) (reversing and remanding for resentencing on a
possession of methamphetamine conviction when the trial
court's statements suggested its belief that the
defendant was also engaged in the uncharged offense of sale
of methamphetamine, in violation of his due process rights).
the State's "burden to show from the record as a
whole that the trial court did not consider impermissible
factors in rendering its sentence." Love v.
State, 235 So.3d 1037, 1039-40 (Fla. 2d DCA 2018)
(quoting Mosley v. State, 198 So.3d 58, 60 (Fla. 2d
DCA 2015)). The appellate court "must examine the record
to determine whether it 'may reasonably be read to
suggest' that a defendant's sentence was the result,
at least in part, of the consideration of ...