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


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



ALEX PETER NICHOLS, DOC #128257,   )
                                   )
           Appellant,              )
                                   )
v.                                 )                 Case No. 2D18-1487
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed November 8, 2019.

Appeal from the Circuit Court for Pinellas
County; Frank Quesada, Judge.

Howard L. Dimmig, II, Public Defender,
John C. Fisher and Lisa B. Lott, Assistant
Public Defenders, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and C. Todd Chapman,
Assistant Attorney General, Tampa, for
Appellee.



SILBERMAN, Judge.

             Alex 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.

              At the 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.

              Defense 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




                                           -2-
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."

              Nichols 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."

              The 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 call 911.

              At the 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).




                                             -3-
              After 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."

              Nichols 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).

              It is 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




                                           -4-
result, at least in part, of the consideration of impermissible factors." Mosley, 198 So.

3d at 60 (quoting Moorer v. State, 926 So. 2d 475, 477 (Fla. 1st DCA 2006)).

              Although it is permissible for the trial court to consider the circumstances

surrounding the primary offense and the defendant's prior record, see § 921.002(1)(c),

(d), Fla. Stat. (2015), consideration of subsequent misconduct or pending or dismissed

charges is constitutionally impermissible and violates a defendant's due process rights.

See Tharp v. State, 273 So. 3d 269, 271 (Fla. 2d DCA 2019); Lundquist v. State, 254

So. 3d 1159, 1160 (Fla. 2d DCA 2018); Fernandez v. State, 212 So. 3d 494, 496 (Fla.

2d DCA 2017); Challis, 157 So. 3d at 396; see also Hernandez v. State, 145 So. 3d

902, 905 (Fla. 2d DCA 2014) ("[U]ncharged crimes cannot be considered when

determining a sentence.").

              The State did not charge Nichols with committing a homicide, and the trial

court expressly acknowledged that the State did not have the facts to charge a

homicide. Indeed, as noted previously, the victim had multiple drugs in her system,

including a small amount of Dilaudid. The State did not contend that Nichols had

provided the victim with anything other than the Dilaudid, which could not be determined

as contributing to her death. Nevertheless, the trial court stated that Nichols was "the

primary cause of her death, period."

              Reading the trial court's comments at sentencing together with the record

as a whole, it is unclear whether the trial court (1) considered the circumstances

surrounding the offenses for which Nichols was convicted, including the argument that

he was the adult present but waited far too long to call 911; or (2) considered that

Nichols was responsible for an uncharged homicide by giving the victim drugs that




                                           -5-
contributed to her death; or (3) considered both (1) and (2) above. Taken in context, we

cannot conclude that the trial court did not consider an uncharged homicide in some

measure. The State has failed to meet its burden to demonstrate that the trial court did

not consider an impermissible factor—an uncharged homicide—when sentencing

Nichols. See Lundquist, 254 So. 3d at 1160; Fernandez, 212 So. 3d at 497. Thus, we

affirm Nichols' convictions, reverse his sentences, and remand for resentencing before

a different judge. See Love, 235 So. 3d at 1040.

             Affirmed in part, reversed in part, and remanded.



BLACK and ATKINSON, JJ., Concur.




                                          -6-
