JOHNATHAN KENNETH RAY DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Davis appealed his convictions for three counts of attempted first-degree murder. The Fourth DCA affirmed the convictions but vacated the sentence and remanded for resentencing before a different judge, finding the trial court committed fundamental error by improperly considering Davis's lack of remorse as a sentencing factor.
The trial court committed fundamental error by predicating the length of Davis's sentence on his failure to show remorse and take ownership of his actions. Such reliance violates a defendant's due process rights and right against self-incrimination, requiring reversal and resentencing before a different judge.
[1] A trial court violates a defendant's due process rights when it relies on constitutionally impermissible factors in imposing a sentence.
[2] A court violates a defendant's right not to be required to incriminate himself when it predicates the length of a sentence on the defendant's failure to show any inclinat…
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Join FLexlaw to unlock all legal intelligence“When a court predicates the length of a sentence on the defendant's failure to show any inclination toward repentance, the court violates the defendant's right not to be required to incriminate himself.”
Establishes the constitutional violation at issue—using lack of remorse as a sentencing factor violates due process and the right against self-incrimination.
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Join FLexlaw to unlock all legal intelligenceDavis was convicted of three counts of attempted first-degree murder with a firearm. At sentencing, the State recommended the lowest permissible sente…
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Davis appeals his convictions and sentence for three counts of attempted first degree murder with a firearm. We affirm his convictions without discussion, but vacate his sentence and remand for resen-tencing before a different judge because the trial court improperly considered Davis’s lack of remorse in sentencing him.
At the sentencing hearing, the State asked the court to sentence Davis to the lowest permissible sentence, a twenty-five year mandatory minimum to run concurrently on all cases. However, at the conclusion of the hearing, the trial court stated:
THE COURT: I heard the evidence and I heard the jury speak. I also heard the recommendation of your lawyer. I’ve heard the recommendation by the state. I am going to give you as much of a break as I can. What I didn’t hear was your responsibility. What I didn’t hear was an apology to the family of the victims and to the victims. What I didn’t hear was you taking ownership of your actions and that bothers me.
(emphasis added). The trial court then sentenced Davis to concurrent terms of thirty years in prison with a twenty-five year mandatory minimum sentence and credit for time served.
On appeal, Davis argues that the trial court improperly considered his lack of remorse as an aggravating factor in the sentencing decision. He asserts that the trial court specifically referenced his lack of remorse when it announced his sentence, and that he is therefore entitled to resentencing before a different judge. We agree.
A defendant’s due process rights are violated where the trial court relies on *1160constitutionally impermissible factors in imposing a sentence. Norvil v. State, — So.3d —, 2014 WL 940724, 39 Fla. L. Weekly D520 (Fla.- 4th DCA Mar. 12, 2014). It is well established that “[w]hen a court predicates the length of a sentence on the defendant’s failure to show any inclination toward repentance, the court violates the defendant’s right not to be required to incriminate himself.” Gilchrist v. State, 938 So.2d 654, 657-58 (Fla. 4th DCA 2006); see also Donaldson v. State, 16 So.3d 314 (Fla. 4th DCA 2009); Soto v. State, 874 So.2d 1215 (Fla. 3rd DCA 2004) (stating that although defendant’s lack of remorse and unwillingness to admit guilt were not the only factors in the trial court’s sentencing decision, where the judge’s own statements showed that the defendant’s unwillingness to admit guilt was one of the factors considered by the judge, reversal and resentencing before another judge were required). A trial court’s consideration of a defendant’s lack of remorse in imposing its sentence is fundamental error. See Whitmore v. State, 27 So.3d 168, 172 (Fla. 4th DCA 2010) (vacating the sentence and directing that the defendant be resentenced before a different judge).
Likewise, here, the trial court’s consideration of Davis’s lack of remorse and failure to take ownership of his actions or apologize to the victims’ families constituted fundamental error. Therefore, we reverse the case for resentencing before another judge.
Affirmed in part, reversed in part, and remanded.
WARNER, LEVINE and CONNER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rankin v. State, 174 So. 3d 1092 (Fla. 4th DCA 2015)…urt permissibly could have considered all factors relevant to his rehabilitation and fitness to rejoin society,” including his remorse or lack of it. Id. This is the distinguishing factor between this case and our recent decision in Davis v. State, 149 So. 3d 1158 (Fla. 4th DCA 2014), upon which Rankin relies in his reply brief. In Davis, this Court reversed a defendant’s concurrent sentences for attempted first degree murder with a firearm when the trial judge made the following remarks: I heard the evidenc…
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Alfonso-Roche v. State, 199 So. 3d 941 (Fla. 4th DCA 2016)…DCA [*950] 2013), (3) where a judge takes his own religious beliefs into account in sentencing, Santisteban, 72 So. 3d at 197, (4) where a judge improperly considers a defendant’s lack of remorse or failure to accept responsibility, Davis v. State, 149 So. 3d 1158, 1160 (Fla. 4th DCA 2014), Moorer v. State, 926 So. 2d 475, 477 (Fla. 1st DCA 2006), or (5) where a sentence is the product of judicial vindictiveness, Hall v. State, 823 So. 2d 757, 762 (Fla.2002). One aspect of judicial vindictiveness is where, af…
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Lawton v. State, 207 So. 3d 359 (Fla. 3d DCA 2016)…emorse, therefore, constituted an impermissible factor in imposing its sentence. Because we find that the trial court’s consideration of Lawton’s lack of remorse constituted fundamental error, we reverse and vacate the sentence. See Davis v. State, 149 So. 3d 1158, 1160 (Fla. 4th DCA 2014) (finding that a “trial court’s consideration of a defendant’s lack of remorse in imposing its sentence is fundamental error”). We further direct that Lawton be resentenced before a different judge. Reversed and remanded.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Soto v. State, 874 So. 2d 1215 (Fla. 3d DCA 2004)
- Whitmore v. State, 27 So. 3d 168 (Fla. 4th DCA 2010)
- Hernandez v. State, 938 So. 2d 654 (Fla. 4th DCA 2006)
- Gaborugh F. Donaldson v. State, 16 So. 3d 314 (Fla. 4th DCA 2009)