In unusual Florida case, drug dealer’s guns can’t be considered in sentencing

Image via Fresh Take Florida.

A confidential informant. Nearly 30 pounds of marijuana. Guns found at the scene.

Just another routine drug bust? Maybe not.

A ruling by a state appeals court in a little-noticed, nearly two-year court battle over a drug arrest in Central Florida may have broad implications for Second Amendment rights in a state with so many owners of firearms that it’s sometimes called the “Gunshine State.”

A three-judge panel from Florida’s Fifth District Court of Appeals last week ordered a new sentencing for a Citrus County man convicted for selling marijuana. Once a new judge is assigned and a hearing date set, prosecutors and the defendant’s attorney will clash again over how long the defendant should be incarcerated.

With its decision, the court has ruled legal gun ownership can’t be used to impute unlawful intentions, a powerful assertion of gun rights in Florida.

“This appeal presents the question whether a trial court may rely on a defendant’s lawful firearm possession in sentencing him. We conclude that it may not,” the ruling stated. “Courts deprive defendants of due process when they rely on uncharged and unproven conduct during sentencing, and this principle holds especially true where the uncharged conduct is the lawful exercise of a constitutional right.”

How did a drug case that didn’t involve guns lead to the Second Amendment? All it took was two photos and a few contradictory statements from a judge.

Mykel Anthony Nelson of Crystal River, who was 27 at the time, was arrested in December 2020 on drug-related charges after the Citrus County Sheriff’s Office seized 28.9 pounds of marijuana from his residence in Hernando during a search with a warrant, according to court records.

A confidential informant had twice previously purchased marijuana from Nelson before arranging a third buy. The informant never arrived to collect. Police showed up, instead.

Nelson was charged with four felonies, including trafficking in cannabis, plus a misdemeanor. He ultimately pleaded no contest. None of the charges were related to guns.

During Nelson’s sentencing in February 2022, prosecutors sought a sentence of 87 months on two of the charges from Circuit Judge Richard Howard. The sentences for the other charges were to be served concurrently. Nelson apologized to his mother and the judge and said he agreed to sell the marijuana to raise money to invest in real estate and pay for renovations of a home.

“I did it out of impatience and greed,” he said. “I’m a bit of an opportunist and sometimes it works in my advantage and sometimes it bites me in the, you know, rear.”

According to the appeals ruling, prosecutors at the hearing displayed two photos of firearms legally owned by Nelson that were found in Nelson’s residence during his arrest as part of their argument. The guns included a small Ruger pistol and an assault-style rifle.

Prosecutors mentioned there had been a murder months prior possibly linked to the sale of marijuana, although they did not state Nelson was involved in the killing.

After sentencing Nelson, Howard mentioned the photos of the guns in a seemingly paradoxical statement.

“And what hurts you the most Mr. Nelson, was … the photographs of the guns,” Howard said. “They did not charge with those. I did not take that into account; but why you did this, I do not know.”

Nelson appealed the case the following month.

On Friday, a panel of three appellate judges in Daytona Beach — Jordan Pratt, Eric Eisnaugle and John Harris — ruled Nelson’s rights to due process had been violated during his sentencing when the trial judge had taken Nelson’s ownership of firearms into consideration, especially considering the fact that Nelson had not been charged with any firearms-related offenses and had been exercising his protected Second Amendment rights as a lawful gun owner.

“If due process prohibits a trial court from relying on ‘uncharged and unproven crimes’ when pronouncing a sentence … it prohibits a trial court from relying on the lawful exercise of a constitutional right,” the appeals judges wrote.

The panel found prosecutors had been unable to prove that Howard had not partially relied on Nelson’s gun ownership in pronouncing his sentence given the judge’s remarks.

The panel threw out Nelson’s sentence and directed the chief judge to reassign the case to a different judge for a new sentencing. The new judge has not yet been assigned.

When Nelson is resentenced, the time he has already served in prison will be deducted from the new sentence. He was placed in jail immediately following his sentencing in February 2022, and is currently incarcerated at Putnam Correctional Institution in Palatka, where he was transferred in April 2022, the day after his 29th birthday.

Nelson’s attorney, Victoria Hatfield, said Nelson was just learning about the ruling in his case. She declined to make Nelson available for an interview.

“I have a great deal of respect and admiration for Judge Howard and the prosecutors, but no one in the practice of law is perfect,” Hatfield said in an interview. “We appreciate the appellate court giving this matter a second look. My client and his family look forward to a resentencing in his case.”

Legal experts said the case was unusual.

“I can understand why police and prosecutors are not thrilled with armed drug dealers, so I can see why they wanted a harsher sentence because of the guns,” said John J. Donohue III, a professor at Stanford Law School who researches firearms and crime.

He said the ruling was indicative of trends sweeping the country and could be reflected in federal legal battles related to the Second Amendment.

“This case shows the thinking that is expanding across the nation that embraces a very strong pro-gun agenda and it gives a sense of the likely direction the current Supreme Court is headed,” Donohue said.

Andrew Willinger, the Executive Director of Duke University School of Law’s Center for Firearms Law, said the case was interesting, but he believes it wasn’t likely to affect gun rights in a significant way. He said cases like this may become more common.

“As more guns are purchased and carried in public places — the Supreme Court’s recent Second Amendment jurisprudence makes this likely — courts may increasingly confront the situation presented in Nelson where a defendant possesses guns lawfully unrelated to the actual offense. That said, my sense is that it’s generally unusual for courts to consider conduct during sentencing that isn’t somehow connected to the offense charged.”

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This story was produced by Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications. The reporter can be reached at [email protected]. You can donate to support our students here.