Increasing Defendant's Sentence Based on Lawful Gun Possession Is Forbidden

From Nelson v. State, decided today by the Florida Court of Appeal, in an opinion by Judge Jordan Pratt, joined by Judges Eric Eisnaugle and John Harris:

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 process when they rely on uncharged and unproven conduct during sentencing, and this principle holds especially true where the uncharged conduct is the lawful exercise of a constitutional right….

Defendant had been convicted of selling marijuana and related charges. Then,

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 months. During its argument, the State presented two photos of firearms found in Nelson's home, noting 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, and it conceded that it did not bring any firearm-related charges against him.

After hearing a brief rebuttal argument from Nelson's counsel, the court announced his 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 the most, Mr. Nelson, was … the photographs of the guns. They did not charge with those. I did not take that into account; but why you did this, I do not know." 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….

Impermissible, the court said:

Trial courts generally enjoy wide discretion in sentencing convicted defendants within the range of sentences established by the Legislature. However, "an exception exists, when the trial court considers constitutionally impermissible factors in imposing a sentence." Reliance on constitutionally impermissible factors deprives a defendant of due process and therefore constitutes fundamental error. As relevant here, "[a] trial court's consideration of unsubstantiated allegations of misconduct in sentencing constitutes a due process violation." In short, just as "[d]ue process prohibits an individual from being convicted of an uncharged crime," it also prohibits him from being sentenced for one based on "unsubstantiated allegations." [The court cites various Florida state precedents throughout this paragraph. -EV]

This basic principle of due process carries no less force when the uncharged conduct is the lawful exercise of a constitutional right. Both the Florida and federal constitutions guarantee the fundamental, preexisting right to keep and bear arms….

At sentencing, the State presented no evidence to establish that Nelson's possession of firearms within his home contravened the law. The State did not claim that any law prohibited Nelson from possessing firearms at the time of his arrest, much less point to such a law that would pass muster under the Second Amendment. 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." …

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 [in arguing that the court didn't consider the lawful firearms possession] 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." "Because the court's comments could reasonably be 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."

If due process prohibits a trial court from relying on "uncharged and unproven crimes" when pronouncing a sentence, 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.

Victoria E. Hatfield O'Brien Hatfield Reese, P.A.) represents Nelson.