MICHAEL CAVALLARO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Michael Cavallaro appeals his conviction for maintaining a gambling house and his sentencing order. The appellate court affirmed the conviction but reversed and remanded for resentencing, finding that the trial court impermissibly punished Cavallaro for exercising his constitutional right to trial by jury and for failing to accept a plea bargain.
A defendant's decision to go to trial rather than accept a plea bargain is not punishable by a harsher sentence as it would violate the constitutional right to trial by jury. A defendant's exercise of the right to jury trial cannot be viewed as evidence of lack of remorse.
[1] A defendant's decision to proceed to trial rather than accept a plea bargain cannot be punished by a harsher sentence, as doing so infringes upon the constitutional right…
[2] Exercising the right to a jury trial is not an indication of a lack of remorse.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A party's decision to go to trial rather than accept a plea bargain is not punishable by the imposition of a harsher sentence as to do so would impinge on the constitutional right to trial by jury.”
Establishes the core legal principle that sentencing cannot be enhanced based on trial exercise
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Join FLexlaw to unlock all legal intelligenceCavallaro was convicted of maintaining a gambling house. At sentencing, the trial court criticized Cavallaro for going to trial, denying guilt, and fa…
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COPE, Judge.
Defendant appeals his conviction of maintaining a gambling house and the final sentencing order thereon. We affirm in part and reverse in part.
With respect to the trial phase of this case, we find no error. However, we do find merit in the defendant’s claim of error with respect to the sentencing order and remand for a new sentencing proceeding.
At the sentencing hearing, the trial court engaged in a colloquy with a character witness in which the court indicated that defendant had not accepted responsibility for his actions “by going to trial, denying all guilt and coming in here and saying but I didn’t do anything wrong.” He stated the defendant had “trie[d] to hornswoggle the jury into believing he’s innocent.” Moreover, the trial court found fault that the defendant had failed to accept a plea bargain and stated that defendant had failed to show remorse by his decision to engage in “a continued series of legal manipulations, if you will, to avoid fessing up for lack of a better word.”
A party’s decision to go to trial rather than accept a plea bargain is not punishable by the imposition of a harsher sentence as to do so would impinge on the constitutional right to trial by jury. City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla. 1985); Gallucci v. State, 371 So. 2d 148, 150 (Fla. 4th DCA 1979), cert. denied, 383 So. 2d 1194 (Fla.1980); Weathington v. State, 262 So. 2d 724, 725 (Fla. 3d DCA), cert. denied, 267 So. 2d 330 (Fla.1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973).
Additionally, a party’s decision to exercise his or her right to jury trial cannot be viewed as a showing of lack of remorse. As was well set forth by the Second District in Gillman v. State, 373 So. 2d 935 (Fla. 2d DCA 1979), quashed on other grounds, 390 So. 2d 62 (Fla.1980):
“Repentance has a role in penology. But the premise of our criminal jurisprudence has always been that the time for repentance comes after trial. The adversary process is a fact-finding engine, not a drama of contrition in which a pre-judged defendant is expected to knit up his lacerated bonds to society.
* * * * *
Moreover, the refusal of a defendant to plead guilty is not necessarily indicative of a lack of repentance. A man may regret his crime but wish desperately to avoid the stigma of a criminal conviction.”
Id. at 938-39 (quoting Scott v. United States, 419 F. 2d 264, 270-271 (D.D.C.1969)).
It is clear that defendant’s rejection of the prosecution’s plea offer and his decision to go to trial were held against him at sentencing. In accordance with the cited authorities we reverse the adjudication of guilt2 and the sentencing order and remand for a new sentencing proceeding before a different judge.
Reversed and remanded with instructions.
. At trial defendant did not put on any evidence or witnesses, but merely argued that the State had failed to meet its burden of proof.
. Because defendant has no prior record, a material issue for sentencing was whether to withhold adjudication of guilt. We vacate the adjudication so that that issue can be considered at the new sentencing hearing. We intimate no view on the merits of the question whether adjudication should be withheld or imposed.
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J.M. v. State, 677 So. 2d 890 (Fla. 3d DCA 1996)…impermissible factor in sentencing, then the defendant could obtain a new sentencing hearing, possibly before a different judge. See, e.g., Alabama v. Smith, 490 U.S. 794, 798-99, 109 S.Ct. 2201, 2204-05, 104 L.Ed.2d 865 (1989); Cavallaro v. State, 647 So. 2d 1006, 1006-07 (Fla. 3d DCA 1994). These exceptions aside, as a general rule the trial court’s discretionary choice of sentence was not deemed to be subject to appellate review. Although the courts recognized that this “handsoff” approach allowed there t…
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Johnson v. State, 679 So. 2d 831 (Fla. 1st DCA 1996)…ance of caution, we vacate appellant’s sentence, and remand with directions that appellant be re-sentenced by another judge, to be assigned by the chief judge of the circuit. E.g., AS. v. State, 667 So. 2d 994 (Fla. 3d DCA 1996); Cavallaro v. State, 647 So. 2d 1006 (Fla. 3d DCA 1994); Pasley v. State, 559 So. 2d 1167 (Fla. 4th DCA 1990); Webb v. State, 454 So. 2d 616 (Fla. 5th DCA 1984); Gillman v. State, 373 So. 2d 935 (Fla. 2d DCA 1979), reversed on other grounds, 390 So. 2d 62 (Fla.1980); Gallucci v. State,…
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Fredrick Moorer v. State, 926 So. 2d 475 (Fla. 1st DCA 2006)…’s failure to take responsibility for his actions.” In context, the distinction drawn is a subtle one, indeed. A defendant’s “failure to take responsibility” by pleading guilty is an impermissible consideration in sentencing. See Cavallaro v. State, 647 So. 2d 1006, 1007 (Fla. 3d DCA 1994) (“[A] party’s decision to exercise his or her right to jury trial cannot be viewed as a showing of lack of remorse.”); Gillman, 373 So. 2d at 938 (reversing where sentencing judge commented that defendant should have “acknow…1 / 2
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Scott v. United States, 419 F.2d 264 (D.C. Cir. 1969)
- City OF Daytona Beach v. Del Percio, 476 So. 2d 197 (Fla. 1985)
- Gillman v. State, 373 So. 2d 935 (Fla. 2d DCA 1979)
- Gallucci v. State, 371 So. 2d 148 (Fla. 4th DCA 1979)
- State v. Gillman, 390 So. 2d 62 (Fla. 1980)
- Weathington v. State, 262 So. 2d 724 (Fla. 3d DCA 1972)
- Alarid v. N.M. Bd. of Bar Exam'rs, 411 U.S. 933 (U.S. 1973)
- Yodice v. Koninklijke Nederlandsche Stoomboot Maatschappij, 411 U.S. 933 (U.S. 1973)
- Vance v. Fla. Reduction Corp., 267 So. 2d 330 (Fla. 1972)
- State v. Rodriguez, 267 So. 2d 330 (Fla. 1972)