ELCIN SIBRUN
v.
STATE OF FLORIDA
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A trial court cannot consider a defendant's lack of remorse or refusal to accept responsibility as a sentencing factor, and resentencing before a different judge is required even if such consideration was only one of several factors.
[1] A trial court commits reversible error by considering a defendant's lack of remorse or refusal to accept responsibility as a sentencing factor, and resentencing before a…
Previewing 1 of 1 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 court cannot consider a defendant's 'protestations of innocence and failure to show remorse in determining what sentence to impose.'”
Court citing its own precedent from Donaldson v. State and Pierre v. State
Sibrun was convicted of lewd or lascivious battery on a minor and seven counts of electronic transmission of material harmful to a minor. At sentencin…
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PER CURIAM.
Elcin Sibrun appeals his convictions and sentences for one count of lewd or lascivious battery on a person older than twelve years old but less than sixteen years old and seven counts of electronic transmission of material harmful to a minor. Sibrun raises five issues on appeal and, except for one, we affirm without comment.
For the fifth issue, Sibrun argues that the circuit court erred when it considered his lack of remorse in sentencing him. At sentencing, the court stated that based on Sibrun’s testimony, the presentence investigation report, and letters from supporters, Sibrun had “not accepted any responsibility” or shown “any type of remorse or acceptance of guilt,” which “matter[ed]” to the court.
We have held that a court cannot consider a defendant’s “protestations of innocence and failure to show remorse in determining what sentence to impose.” Donaldson v. State, 16 So. 3d 314, 314 (Fla. 4th DCA 2009) (citations omitted); see also Pierre v. State, 259 So. 3d 859, 861–62 (Fla. 4th DCA 2018). 1 We have also held that “[r]e-sentencing is required even if a defendant’s refusal to admit guilt was but one of several factors considered by the court in imposing sentence.” James v. State, 264 So. 3d 982, 987 (Fla. 4th DCA 2019) (quoting Johnson v. State, 948 So. 2d 1014, 1017 (Fla. 3d DCA 2017)). Those decisions control our disposition in this case. We must reverse Sibrun’s sentences and remand for resentencing before a different judge. See id. (citation omitted).
We also note that the First District recently reached a contrary result. See Davis v. State, 268 So. 3d 958, 961 (Fla. 1st DCA 2019) (en banc), rev. granted, No. SC19-716, 2019 WL 2427789 (Fla. June 11, 2019) (“We hold that a trial judge does not violate a defendant’s due process rights by merely considering the defendant’s lack of remorse or refusal to accept responsibility. We hold that lack of remorse and refusal to accept responsibility can be valid sentencing considerations when sentencing within the statutory range, and we recede from our cases that suggest otherwise.”). We certify conflict with the First District’s decision in Davis.
Reversed and remanded for resentencing; conflict certified.
LEVINE, C.J., GERBER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Eleazar Laroy Johnson v. State, 948 So. 2d 1014 (Fla. 3d DCA 2007)
- Blanchard ST. VAL v. State, 958 So. 2d 1146 (Fla. 4th DCA 2007)
- Gaborugh F. Donaldson v. State, 16 So. 3d 314 (Fla. 4th DCA 2009)
- Davis v. State, 268 So. 3d 958 (Fla. 1st DCA 2019)
- Pierre v. State, 259 So. 3d 859 (Fla. 4th DCA 2018)