JOHN CARSWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted by a jury for possession of a firearm by a felon. After reviewing the record, we conclude that the State correctly concedes the trial court erred below.
At the sentencing hearing, the trial court improperly considered its own opinion that Appellant “lied under oath in [his] defense.... ” Accordingly, we reverse the sentence and remand for resentencing before a different judge. See Robinson v. State, 637 So.2d 998, 999 (Fla. 1st DCA 1994) (holding: “A trial judge’s opinion as to whether a defendant testified falsely should not enter into a decision to impose a harsher sentence unless the court is determining the sentence after a separate perjury conviction.”); Smith v. State, 62 So.3d 698, 699 (Fla. 2d DCA 2011) (“ ‘It is impermissible for a trial court to consider a defendant’s assertions of his innocence and refusal to admit guilt in imposing sentence.’”) (quoting Hannum v. State, 13 So.3d 132, 135 (Fla. 2d DCA 2009)).
REVERSED and REMANDED with instructions consistent with this opinion.
VAN NORTWICK, THOMAS, and ROWE, JJ., concur.
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Atkins v. State, 77 So. 3d 245 (Fla. 1st DCA 2012)…ins violated his probation. See Yerrick v. State, 979 So. 2d 1228, 1229 (Fla. 4th DCA 2008); Headley v. State, 770 So. 2d 1244 (Fla. 1st DCA 2000). We reverse the sentence and remand for resen-tencing before a different judge. See Carswell v. State, 75 So. 3d 419 (Fla. 1st DCA 2011). Because the order revoking probation incorrectly states that Mr. Atkins admitted violating probation, we direct that this scrivener’s error be corrected on remand. Affirmed in part, reversed in part, and remanded. BENTON, C.…
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Chatman v. State, 218 So. 3d 928 (Fla. 1st DCA 2016)…e without further comment. With regard to the second issue, it is impermissible for a trial judge to consider a defendant’s veracity when rendering a sentencing decision. Robinson v. State, 637 So. 2d 998, 999 (Fla. 1st DCA 1994); Carswell v. State, 75 So. 3d 419 (Fla. 1st DCA 2011). Before announcing Appellant’s sentence, the court stated: Part of justice is the' justice system. And what I find offensive, not personally, doesn’t really affect me personally, but from the system’s standpoint is [Na-kia’s] b…
Authorities Cited
- Hannum v. State, 13 So. 3d 132 (Fla. 2d DCA 2009)
- Boyd v. State, 13 So. 3d 132 (Fla. 1st DCA 2009)
- Smith v. State, 62 So. 3d 698 (Fla. 2d DCA 2011)
- Robinson v. State, 637 So. 2d 998 (Fla. 1st DCA 1994)