Nusspickel v. State

• Decision Date: 28 September 2007
• Docket Number: No. 2D05-5956.,2D05-5956.
• Parties: Diana NUSSPICKEL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

966 So.2d 441

Diana NUSSPICKEL, Appellant, v. STATE of Florida, Appellee.

No. 2D05-5956.

District Court of Appeal of Florida, Second District.

September 28, 2007.

James Marion Moorman, Public Defender, and Jack W. Shaw, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

Diana Nusspickel challenges her convictions and sentences for seven counts of misdemeanor battery arising from her operation of a motor vehicle. We affirm but write to explain our decision with respect to Nusspickel's argument that the trial court may have relied upon improper considerations in sentencing her. As to Nusspickel's other arguments, we affirm without discussion.

On January 24, 2003, Nusspickel struck several individuals while operating a motor vehicle in a parking lot at Fossil Park in St. Petersburg. The State charged her with eight counts of aggravated battery but dropped one count on the day of trial.¹

The testimony at trial consisted of widely divergent explanations of the incident. The State contended that Nusspickel intentionally struck and injured the victims with the vehicle. Nusspickel did not dispute that she was the driver, that the vehicle struck the victims, or that some of the victims were injured. However, she denied that she intentionally struck the victims. She claimed that the victims had threatened her and a friend, that the victims refused to move from behind the parked vehicle, and that she accidentally struck the victims when she attempted to leave the park.

At the conclusion of the evidence, the trial court instructed the jury on the elements of aggravated battery and the lesser-included offenses of misdemeanor battery and reckless driving. The court also instructed the jury as to self-defense. The jury returned a verdict finding Nusspickel guilty of seven counts of misdemeanor battery.

A number of individuals testified at the sentencing hearing concerning the incident and the injuries that resulted from the incident. One victim's mother testified that after the incident, she took her son to get a restraining order against Nusspickel "because she's coming around, circling my home with her friends and her brother, putting their hands out the car window, making gun gestures at him, stating that she was coming back for him."

Just prior to imposing sentence, the judge commented that it appeared to him that the jury granted a pardon to Nusspickel by returning a verdict for the lesser offenses of misdemeanor battery. The judge observed that if Nusspickel had been convicted of the aggravated batteries as charged, the sentencing guidelines would call for a sentence of at least seventeen years in state prison. The judge added that he was not sure that a seventeen-year sentence, or any sentence, would satisfy the victims.

The judge also commented that

I just can't imagine, I just can't imagine, after causing the kind of injury, that you would—almost killing someone— that you would not just do everything you could to avoid having any contact with that individual or to do anything of that sort. It just distresses me greatly to think that that would occur.

Defense counsel interjected, disputing that any other incidents had occurred. Counsel noted that there had been a hearing before another judge on a motion to increase Nusspickel's bond and that "there's a lot of emotion and back and forth between these folks. So I would ask the Court not to assume that that did, in fact, happen as part of your decision making process." The judge stated, "All right," and proceeded to sentence Nusspickel on the seven battery convictions to four consecutive one-year jail terms followed by three consecutive one-year probation terms, with no early termination of probation.²

Nusspickel filed a motion to correct sentencing errors, alleging, among other things, that the judge's comments reflect that in imposing sentence, the judge violated her due process rights. Nusspickel argued that the judge improperly considered the aggravated battery charges of which she had been acquitted and the purported misconduct of driving by and taunting a victim. In the order denying the motion the judge explained his earlier comments and his reasons for the sentences that he imposed, as follows:

The evidence at trial and the verdict of the jury supported the State's allegation that the Defendant intentionally ran down seven fellow teenagers with an automobile in the parking lot of a city recreation center. Two of the seven victims of the Defendant's conduct incurred very serious injuries.

. . . .

. . . The facts concerning the striking of the victims or the extent of their injuries were not contested during the trial, nor were they challenged at the sentencing hearing. In fact, during the sentencing hearing defendant's counsel and the Defendant herself conceded that victims Hodge and Bailey suffered serious bodily injury as a result of her criminal behavior.

. . . .

. . . In pronouncing the sentence and admonishing the Defendant regarding the actions for which she had been convicted, this court stated the obvious— that the Defendant's conviction for battery with an automobile in the face of conceded and uncontested evidence of serious bodily injury to two of the victims constituted a jury pardon. These statements were not to justify the sentence that the court had chosen to impose, but to emphasize to the Defendant how fortunate she had been to avoid felony convictions for seven counts of aggravated battery which carried a potential maximum sentence of one hundred and five (105) years in state prison and for which the minimum guideline sentence was seventeen (17) years. The court's statements regarding the jury pardon were also made in order to acknowledge to the victims and their families the frustration and bewilderment that they were experiencing with a legal system that they had turned to for justice in this case.

. . . .

. . . The fact that the jury chose to grant a jury pardon does not preclude this court from considering serious harm as a factor in determining an appropriate sentence. The recognition of the existence of a jury pardon in this case is irrelevant to the issue of sentencing for the Defendant's misdemeanor offenses. Conviction for a lesser included offense necessarily requires a sentence within the statutory range for that level of offense. However, in determining that sentence the court is not precluded from considering the existence of serious injury merely because such injury also constitutes an element of a greater offense for which the Defendant was not convicted. In this case, the sentence imposed was not a function of a belief that the Defendant was guilty of aggravated battery.

Nusspickel argues that the judge's statements reflect that he may have improperly taken into account (1) his expressed belief that Nusspickel was guilty of the aggravated battery charges even though the jury convicted her on each charge of the lesser-included offense of simple battery and (2) misconduct that had not been charged and proved relating to her alleged contact with one of the victims after the charged incidents. She also asserts that the State cannot carry its burden to show that the judge did not rely on these impermissible considerations.

Generally, the trial court's imposition of a sentence that is within the minimum and maximum limits set by the legislature "is a matter for the trial Court in the exercise of its discretion, which cannot be inquired into upon the appellate level." Shellman v. State, 222 So.2d 789, 790 (Fla. 2d DCA 1969); see also Booker v. State, 514 So.2d 1079, 1082 (Fla.1987) (recognizing that "this Court and the United States Supreme Court have embraced the notion that so long as the sentence imposed is within the maximum limit set by the legislature, an appellate court is without power to review the sentence"); Darby v. State, 216 So.2d 29, 30 (Fla. 3d DCA 1968) ("An appellate court of this state will not disturb a sentence which is within the limit set by statute."). In Fraley v. State, 426 So.2d 983, 985 (Fla. 3d DCA 1983), the Third District stated the following:

Most assuredly, under the laws of this state a trial judge has considerable discretion as to what sentence to impose and where the sentence is within statutory minimums or maximums appellate review will be limited to determining whether the process used by the judge in arriving at a sentence was fair, particularly whether the factors taken into consideration were relevant and reliable.

Nusspickel cites to several cases that discuss an exception to the general rule, including Epprecht v. State, 488 So.2d 129 (Fla. 3d DCA 1986), and its progeny, Doty v. State, 884 So.2d 547 (Fla. 4th DCA 2004), Seays v. State, 789 So.2d 1209 (Fla. 4th DCA 2001), and Cook v. State, 647 So.2d 1066 (Fla. 3d DCA 1994). In Epprecht, the Third District held "that the due process clause prohibits a court from considering charges of which an accused has been acquitted in passing sentence." 488 So.2d at 131. If portions of the record reflect that the trial court may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show from the record as a whole that the trial court did not rely on such impermissible considerations. Id. at 130. Further, unsubstantiated allegations of misconduct or speculation that the defendant probably committed other crimes may not be relied upon by a trial court in imposing sentence. See Doty, 884 So.2d at 550; Reese v. State, 639 So.2d 1067, 1068 (Fla. 4th DCA 1994); Epprecht, 488 So.2d at 131.

In Howard v. State, 820 So.2d 337, 340 (Fla. 4th DCA 2002), the court stated that the exception to the general rule is "where the facts establish a violation of a specific constitutional right during sentencing." The court noted, however, that a sentencing court...