BRIAN BENTON, PETITIONER,

v.

STATE OF FLORIDA, RESPONDENT

Citator

Cited By

• Fernandez v. State, 212 So. 3d 494 (Fla. 2d DCA 2017)
  …andez correctly argues that a trial court’s consideration of a constitutionally impermissible sentencing factor is a fundamental error in the sentencing process. Yisrael v. State, 65 So. 3d 1177, 1177 (Fla. 1st DCA 2011); see also Williams v. State, 164 So. 3d 739, 740 (Fla. 2d DCA 2015) (finding “fundamental error and a denial of due process” in the consideration of certain sentencing factors). The question then becomes whether the sentencing error Norvil identifies is such an error. The Norvil opinion state…

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• Rodriguez-Aguilar v. State, 198 So. 3d 792 (Fla. 2d DCA 2016)
  …regarded as fundamental error and a denial of due process for a trial judge to consider a defendant’s refusal to admit guilt, unwillingness to take responsibility for his actions, or the untruthfulness of his testimony. See, e.g., Williams v. State, 164 So. 3d 739, 740-41 (Fla. 2d DCA 2015); Bracero v. State, 10 So. 3d 664, 665-66 (Fla. 2d DCA 2009); Hannum v. State, 13 So. 3d 132, 135-36 (Fla. 2d DCA 2009). There arguably may be a slight distinction between a finding of danger based on a defendant’s, testimo…
• Allen v. State, 211 So. 3d 48 (Fla. 4th DCA 2017)
  …required to incriminate himself.”). Our sister courts have also consistently held that fundamental error occurs when the trial court expressly considers the defendant’s unwillingness to admit guilt as a factor in sentencing. See Williams v. State, 164 So. 3d 739, 740 (Fla. 2d DCA 2015) (“When a sentencing court expressly considers the improper factors of a defendant’s assertions of innocence and refusal to admit guilt, the truthfulness of his testimony, or the failure to show remorse, fundamental error and…