Shelko v. State

• Decision Date: 26 April 2019
• Docket Number: Case No. 5D18-1162
• Citation: 268 So.3d 1003
• Parties: Robert John SHELKO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

268 So.3d 1003

Robert John SHELKO, Appellant,

v.STATE of Florida, Appellee.

Case No. 5D18-1162

District Court of Appeal of Florida, Fifth District.

Opinion filed April 26, 2019

James S. Purdy, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.

LAMBERT, J.

The sole issue that we address in this case is the not-infrequently-raised claim by defendants that the trial judge in their cases committed fundamental error in considering unsubstantiated allegations of misconduct at a sentencing hearing. Because we conclude that this is what happened here, we reverse the sentence imposed and remand for resentencing by a different judge.

The facts of this case are straightforward and uncomplicated. Robert John Shelko was stopped by a Citrus County Sheriff's Deputy for failing to maintain his vehicle in a single lane of traffic. During the course of this stop, a canine deputy arrived on the scene, and his dog conducted an exterior search of Shelko's vehicle. The dog alerted to an odor of narcotics; and, during the subsequent search of the vehicle at the scene, a pipe used to smoke methamphetamine was seized. Shelko was then placed under arrest; and during a search incident to his arrest, two separate baggies of methamphetamine were found in one of Shelko's pants pockets. The deputies also seized $ 1300 in cash.

The State charged Shelko with possession of methamphetamine, a third-degree felony, and possession of paraphernalia. Shelko proceeded to trial and was convicted as charged. The trial judge held a sentencing hearing immediately after the jury was discharged. After hearing from Shelko as well as his mother and daughter, and after very brief argument from the prosecutor and defense counsel, the trial judge examined the methamphetamine and thereafter stated:

The only thing I can say, Mr. Shelko, dealing with the issue is that is what I called cartel quality meth. This is not shake and bake. And you know what shake and bake is, right? Shake and bake is the cheap stuff that's made locally.

This is crystal clear methamphetamine, window glass, window pane, crystal. This is cartel quality methamphetamine. It would probably light up every one of you in this room, okay.

And the fact that you had these separate amounts of it and a quantity of cash causes me great consternation.

The judge then sentenced Shelko to serve the maximum sentence of five years' imprisonment for the conviction of possession of methamphetamine.¹ Immediately thereafter, the judge decided to order the forfeiture of the $ 1300 found in Shelko's possession when he was arrested, observing that "although [Shelko] wasn't charged with sale or distribution, it's obvious that when you look at those two different amounts of cartel quality meth that [the money] was a result of ill gotten gains."

Shelko argues on appeal that the trial court erred in sentencing when it considered unsubstantiated allegations of misconduct. A trial court commits fundamental error when it considers constitutionally impermissible factors when imposing sentence. See Yisrael v. State , 65 So.3d 1177, 1177 (Fla. 1st DCA 2011) (citing Nawaz v. State , 28 So.3d 122, 124–25 (Fla. 1st DCA 2010) ; Jackson v. State , 39 So.3d 427, 428 (Fla. 1st DCA 2010) ). Furthermore, a defendant's due process rights are violated when the trial court considers such factors as unsubstantiated allegations of misconduct in sentencing. See McGill v. State , 148 So.3d 531, 531–32 (Fla. 5th DCA 2014) (citing Crouse v. State , 101 So.3d 901, 903 (Fla. 4th DCA 2012) ).

The trial judge here appears to have based his sentencing decision, at least in part, on what he perceived to be the "cartel quality of the methamphetamine" found in Shelko's...