         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-4815
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ROBERT MULLALY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Bruce Anderson, Judge.

                       December 31, 2018


PER CURIAM.

     Robert Mullaly appeals his life sentence. We reverse and
remand for resentencing because, in sentencing Mr. Mullaly, the
trial judge relied on a 1993 assault charge, which was dropped.

     Mr. Mullaly was found guilty of rape in 1973 and was required
to be treated with sexual psychotherapy as a prerequisite to his
sentencing. See Slappey v. State, 584 So. 2d 1108 (Fla. 1st DCA
1991). See also Haager v. State, 36 So. 3d 883, 884 (Fla. 2d DCA
2010) (describing the sentencing scheme applicable to sex
offenders in the 1970s). But the court sentenced him to life in
prison without the required treatment. In 2015, Mr. Mullaly filed
a motion to vacate the 1973 judgment and sentence and to hold a
new sentencing because of the error. The court granted his motion,
vacated the 1973 judgment and sentence, and found that he
completed the requisite treatment. Mr. Mullaly was then
resentenced to life in prison.

    At Mr. Mullaly’s resentencing, the trial court considered the
mitigating factors, as well as the aggravating events that
happened while Mr. Mullaly was on parole. One of the events was
an alleged 1993 assault on his wife, a charge that was dropped.
The trial court mentioned it twelve times in the course of Mr.
Mullaly’s resentencing and appeared to consider it an aggravator.

     Under these circumstances, we agree with Mr. Mullaly that
the trial judge sentenced him improperly, by relying partly on the
alleged 1993 assault on his wife. See Drinkard v. State, 177 So. 3d
993, 994 (Fla. 1st DCA 2015) (remanding for resentencing, because
“[a]t sentencing, the trial court repeatedly referred to the state’s
evidence that appellant had been racing on a highway — conduct
for which appellant and a co-defendant had been charged and
acquitted”). And the State failed to show that the alleged 1993
assault “played no part in the sentence imposed.” See Williams v.
State, 8 So. 3d 1266, 1267 (Fla. 1st DCA 2009) (citations omitted)
(“When portions of the record show the trial court relied upon prior
acquittals in determining a defendant’s sentence, the State has the
burden to demonstrate those considerations ‘played no part in the
sentence imposed.’”).

     Accordingly, we reverse Mr. Mullaly’s sentence and remand
for sentencing before a different judge.

    REVERSED and REMANDED.

MAKAR, OSTERHAUS, and JAY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Jasmine Russell, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




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