Mosley v. State, 198 So. 3d 58

Jeffrey Mosley was convicted by a jury of multiple drug offenses, including possession of cannabis with intent to sell within 1,000 feet of public housing; the trial court later sentenced him to seven years in prison.
At sentencing Mosley sought probation; the State asked for at least a ten-year prison term. Mosley’s Criminal Punishment Code scoresheet reflected that a nonstate-prison sanction was the lowest permissible sentence.
The State presented a detective who testified about numerous allegations and incidents involving Mosley that were not charged or proven at the sentencing hearing (e.g., subsequent search warrants and seizures, undercover sales by others at Mosley’s residence, a stabbing near his home, an alleged jail fight, and an alleged home-invasion robbery).
Mosley’s counsel objected repeatedly to the detective’s testimony as involving unsubstantiated misconduct and urged the court to confine sentencing considerations to the offenses of conviction.
The trial court sustained some objections but stated it was “primarily looking at the case that we're here on” while admitting it may have given “some consideration of other factors.”
The Second District affirmed Mosley’s convictions but concluded the sentencing record reasonably suggested the trial court considered impermissible, unsubstantiated allegations; the court vacated the sentences and remanded for resentencing before a different judge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court relied on unsubstantiated allegations of other crimes in sentencing	State argued facts recounted by detective were relevant to rebut mitigation and justify a lengthy prison term	Mosley argued the court relied on impermissible, unproven allegations and should consider only the convictions and proper sentencing factors	Court held the record may reasonably be read to show the court considered impermissible unsubstantiated allegations; sentence vacated and remanded for resentencing
Standard/burden for showing impermissible factors were considered	State argued record shows court focused on the current case	Mosley argued state failed to show the court avoided consideration of improper matters	Court applied de novo review and required the State to show from the record as a whole that impermissible factors were not considered; State failed to meet that burden

Cromartie v. State, 70 So. 3d 559 (discusses de novo review of sentencing for improper factors)
Imbert v. State, 154 So. 3d 1174 (same standard of review cited)
Nusspickel v. State, 966 So. 2d 441 (state bears burden to show improper factors were not considered)
Moorer v. State, 926 So. 2d 475 (courts must examine record to see if sentence may reasonably be read to reflect consideration of improper factors)
Hernandez v. State, 145 So. 3d 902 (sentence reversed where detective’s testimony about pending charges improperly considered)
Reese v. State, 639 So. 2d 1067 (unsubstantiated allegations may not be considered at sentencing)
Whitehead v. State, 21 So. 3d 157 (distinguishes when pending charges may be considered because they relate to conduct at issue)