               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



KIMBERLY JANE LUNDQUIST,                     )
                                             )
              Appellant,                     )
                                             )
v.                                           )
                                             )          Case No. 2D17-413
STATE OF FLORIDA,                            )
                                             )
              Appellee.                      )
                                             )

Opinion filed September 7, 2018.

Appeal from the Circuit Court for DeSoto
County; Kimberly Bonner, Judge.

Howard L. Dimmig, II, Public Defender,
and Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and David Campbell,
Assistant Attorney General, Tampa, for
Appellant.


PER CURIAM.

              Kimberly Lundquist appeals her convictions for sale of methamphetamine

within one thousand feet of a place of worship and possession of paraphernalia and her

resulting sentences after a jury trial. We affirm Lundquist's convictions without

comment. However, on appeal she argues that she is entitled to resentencing before a
different judge because the trial court relied on impermissible sentencing factors in

imposing her sentence. We agree and reverse.

              At sentencing, the State argued that Lundquist was "a consistent drug

dealer" and that it could have officers testify that Lundquist had "a predisposition for

dealing drugs multiple times to multiple people, not just this one drug sale." Lundquist

correctly responded that it was inappropriate for the State to argue uncharged conduct

as a basis for sentencing her in this case and testified that she had never sold drugs to

anyone outside of the present charges. The State argued that it was not aware of the

subsequent sales until trial and that "law enforcement . . . [had] information from

multiple informants that they can purchase drugs from her as well." Without citing any

authority, the State claimed that it was "absolutely allowed to comment on uncharged

criminal acts and the case law is clear on that."

              This court has repeatedly explained "that incidents of misconduct

occurring after the charged offense, some of which did not result in charges or arrests,

[are] impermissible sentencing factors." Love v. State, 235 So. 3d 1037, 1039 (Fla. 2d

DCA 2018); see also N.D.W. v. State, 235 So. 3d 1001, 1002 (Fla. 2d DCA 2017)

(reversing and remanding for a new disposition hearing when the State relied on

uncharged misconduct to support its recommended sentence); Mosley v. State, 198 So.

3d 58, 60 (Fla. 2d DCA 2015) (same); Hernandez v. State, 145 So. 3d 902, 905 (Fla. 2d

DCA 2014) ("[U]ncharged crimes cannot be considered when determining a

sentence."); Nusspickel v. State, 966 So. 2d 441, 445 (Fla. 2d DCA 2007)

("[U]nsubstantiated allegations of misconduct or speculation that the defendant probably

committed other crimes may not be relied upon by a trial court in imposing sentence.").




                                            -2-
And "when a trial court relies on impermissible factors in sentencing a defendant, the

court violates the defendant's due process rights," committing fundamental error.

N.D.W., 235 So. 3d at 1002 (quoting Charles v. State, 204 So. 3d 63, 66 (Fla. 4th DCA

2016)); see also Fernandez v. State, 212 So. 3d 494, 496 (Fla. 2d DCA 2017)

("[C]onsideration of a constitutionally impermissible sentencing factor is a fundamental

error in the sentencing process.").

              There is no question that the State's argument that Lundquist was a

persistent drug dealer was improper in this case. And "[t]he State bears the burden to

show from the record as a whole that the trial court did not consider impermissible

factors in rendering its sentence." Love, 235 So. 3d at 1039–40 (alteration in original)

(quoting Mosley, 198 So. 3d at 60). When imposing sentence, the trial court stated that

it was "taking into account everything, including the evidence here, both aggravating

and mitigating" and expressed its surprise that Lundquist did not have additional

convictions based on the length of time she had been struggling with addiction. As in

Love, the trial court did not specifically mention the uncharged misconduct or identify

any specific factors that it considered. Id. at 1040. And here, the State extensively

relied on that alleged conduct at sentencing and implied, contrary to law, that the trial

court was entitled to consider it in imposing sentence. Accordingly the State has failed

to meet its burden to show that the trial court did not consider the impermissible factors

when imposing Lundquist's sentence in this case.

              Accordingly, we reverse Lundquist's sentences and remand for

resentencing before a different judge. See id. (citing Fernandez, 212 So. 3d at 497).

              Affirmed in part, reversed in part, and remanded with instructions.




                                            -3-
NORTHCUTT, SLEET, and SALARIO, JJ., Concur.




                                   -4-
