KEVIN LYONS, A/K/A JOHN MOSES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kevin Lyons was convicted of robbery with a firearm and battery on a person over 65, and sentenced as a habitual offender to 20 years for robbery and 5 years for battery. The Florida District Court of Appeal reversed and remanded for resentencing before a different judge, finding that the trial court impermissibly punished the defendant for maintaining his innocence at sentencing.
The court reversed the sentences and remanded for resentencing before a different judge because the trial court's comments and conduct indicate that the defendant was punished for asserting his innocence, which violates constitutional protections against additional punishment for exercising the right to trial and for failing to show remorse.
[1] A defendant may not be punished for failing to show remorse or for continuing to claim innocence.
[2] A trial court's comments at sentencing may suggest that the sentence was influenced by the defendant's decision to exercise the right to a jury trial, warranting resenten…
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Join FLexlaw to unlock all legal intelligence“A defendant may not be additionally punished for failing to show remorse...nor for continuing to claim innocence.”
Establishes the legal principle that defendants cannot receive enhanced sentences based on maintaining innocence or lack of remorse
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Join FLexlaw to unlock all legal intelligenceFollowing conviction, the state notified the court that appellant was a habitual offender and had previously offered a 10-year habitual offender sente…
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KLEIN, J.
Appellant was convicted of robbery with a firearm and battery on a person over the age of sixty-five. He was sentenced as a habitual offender to concurrent sentences of twenty years for the robbery and five years for the battery. We reverse and remand for sentencing before a different judge.
Immediately following the verdict, the state informed the court that the appellant was a habitual offender and that it had offered appellant a habitual offender sentence of ten years prior to trial. The court asked if appellant wanted a presentence investigation, and after a discussion off the record, and a reference to another pending case to which appellant was going to enter a plea, defense counsel informed the court that appellant “would like to take care of it right now and get on with it, get on with his life.”
At this point the court raised the issue of restitution and asked if appellant knew where the stolen property was. Appellant responded that he was innocent, and then the following exchange took place:
THE COURT: All right. I’m going to give him 20 years as habitual. He doesn’t have to return nothing. I don’t believe him. Okay?
[Lyons’s ATTORNEY]: Let me talk to him. May I talk to him judge?
THE COURT: there is nothing to talk about. I don’t care about the property, I care about his attitude.
Appellant again asserted his innocence, and the court indicated it would order the presentence investigation unless the appellant wanted to waive it. The appellant then waived the presentence investigation required for sentencing as a habitual offender and the trial court imposed the twenty year sentence for the robbery. The court then remarked:
THE COURT: I know he says he didn’t do it, which I don’t believe, but maybe the State can talk to him about who this other fellow was who helped him. You never know. Maybe he’ll get a benefit. Anyway, good luck to you.
In Johnson v. State, 679 So. 2d 831, 832-33 (Fla. 1st DCA 1996), after the trial court made some comments about the fact that the defendant had gone to trial in “an indefensible case,” the first district reversed, stating:
We agree with appellant that the foregoing comments by the trial court may reasonably be read to suggest that appellant’s sentence was the result, at least in part, of his decision to exercise his constitutional right to insist on a jury trial. Accordingly, in an abundance of caution, we vacate appellant’s sentence, and remand with directions that appellant be resentenced by another judge, to be assigned by the chief judge of the circuit.
We utilized that same “abundance of caution” in reversing a sentence based on comments of the trial court at sentencing in Gallucci v. State, 371 So. 2d 148, 150 (Fla. 4th DCA 1979).
A defendant may not be additionally punished for failing to show remorse. K.Y.L. v. State, 685 So. 2d 1380, 1381 (Fla. 1st DCA 1997), nor for continuing to claim innocence. A.S. v. State, 667 So. 2d 994, 995 (Fla. 3d DCA 1996). In this case it appears that the defendant was being punished for maintaining his innocence in the face of the court’s inquiry as to the location of the stolen property. We therefore reverse the sentences for the robbery and the battery and remand for sentencing before a different judge.
POLEN and SHAHOOD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Ritter v. State, 885 So. 2d 413 (Fla. 1st DCA 2004)…de discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. See, e.g., Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999); Peters v. State, 485 So. 2d 30 (Fla. 3d DCA 1986); Hubler v. State, 458 So. 2d 350 (Fla. 1st DCA 1984). Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true. See KN.M. v.…
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K.N.M. v. State, 793 So. 2d 1195 (Fla. 5th DCA 2001)…nto consideration, we must reverse the disposition order. “In an abundance of caution,” we remand for re-disposition before a different judge. Id. (quoting Hubler; Gallucci v. State, 371 So. 2d 148, 150 (Fla. 4th DCA 1979)); see also Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999); Johnson v. State, 679 So. 2d 831 (Fla. 1st DCA 1996). REVERSED AND REMANDED. SAWAYA and PLEUS, JJ., concur.…
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Soto v. State, 874 So. 2d 1215 (Fla. 3d DCA 2004)…nd unwillingness to admit guilt should not be factors taken into consideration by a court in sentencing a defendant. See e.g. Aliyev v. State, 835 So. 2d 1232 (Fla. 4th DCA 2003); K.N.M. v. State, 793 So. 2d 1195 (Fla. 5th DCA 2001); Lyons v. State, 730 So. 2d 833 (Fla. 4th DCA 1999); and A.S. v. State, 667 So. 2d 994 (Fla. 3d DCA 1996). Although Soto’s apparent unwillingness to admit his guilt, as evidenced by his continued protestations of unfairness, may not have been the only or even the principal reason…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- A.S. v. State, 667 So. 2d 994 (Fla. 3d DCA 1996)
- Gallucci v. State, 371 So. 2d 148 (Fla. 4th DCA 1979)
- K.Y.L. and N.L. v. State, 685 So. 2d 1380 (Fla. 1st DCA 1997)
- Johnson v. State, 679 So. 2d 831 (Fla. 1st DCA 1996)