Alvin Davis v. State of Florida ( 2021 )

Supreme Court of Florida
____________
No. SC19-716
____________
ALVIN DAVIS,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
December 2, 2021
CANADY, C.J.
In this case, we consider whether a trial court’s consideration
of failure to take responsibility during a sentencing proceeding
necessarily violates a defendant’s due process rights. We have for
review the decision of the First District Court of Appeal in Davis v.
State, 268 So. 3d 958, 968-69 (Fla. 1st DCA 2019), in which the
district court certified the following question to be of great public
importance:
WHEN, IF EVER, MUST AN APPELLATE COURT
REVERSE A SENTENCE BASED ON THE TRIAL
COURT’S CONSIDERATION OF “REMORSE,” “FAILURE
TO TAKE RESPONSIBILITY,” OR THE LIKE?
We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
I. BACKGROUND
The facts as set forth by the First District are as follows:
A jury convicted Davis of possessing a firearm as a
convicted felon. According to trial testimony, a teenager
was driving a car with Davis as a passenger. Officers
stopped the car and found drugs, drug paraphernalia,
and a gun. The teenage driver testified that he did not
know a gun was in the car until right before the traffic
stop, when Davis pulled out the gun, wrapped it in an
orange shirt, and stuffed it under the seat.
The teen’s testimony was essential, and the defense
suggested it was also untrue. . . . The jury convicted.
Davis moved for a new trial. After a hearing, the
court denied the motion, and the case proceeded to
sentencing. The presentence investigation report noted
Davis’s “extensive criminal history,” which included
“numerous violent offenses.” It also concluded that Davis
“appears to have a history of gang related activity” and
“apparently continues to be a threat to the safety of the
community.” The PSI [(presentence investigation)] report
recommended the maximum sentence.[N.1]
[N.1] A PSI’s purpose is to provide information
to help the court impose an appropriate
sentence. See Fla. R. Crim P. 3.712(a). . . .
At the sentencing hearing, Davis declared he was
innocent. He insisted that the gun was not his, that the
jury convicted him without sufficient evidence, and that
his counsel performed inadequately. After Davis spoke,
the court pronounced sentence. In doing so, the court
recounted Davis’s significant criminal history and told
Davis “you still fail to take any responsibility for your
actions.” The court concluded that, “considering your
history here, your failure to take any responsibility, the
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nature of the crime, the fact that it involves a firearm, the
Court will sentence you to 15 years . . . , which is the
statutory maximum.”
Davis, 268 So. 3d at 961-62.
Davis appealed, and the First District heard his appeal en
banc. Receding from its own precedent, the First District concluded
that “lack of remorse and refusal to accept responsibility can be
valid sentencing considerations when sentencing within the
statutory range.” Id. at 961.
In reaching this conclusion, the First District explained that
“[t]he commonsense approach of considering a defendant’s
remorse—or willingness to take responsibility—fits with the
Legislature’s command that each sentence be not only
commensurate with the severity of the offense but also fashioned in
light of ‘the circumstances surrounding’ it.” Id. at 963 (quoting
§ 921.002(1)(c), Fla. Stat. (2017)). The district court noted the
United States Supreme Court’s recognition that “ ‘possession of the
fullest information possible concerning the defendant’s life and
characteristics’ is ‘[h]ighly relevant—if not essential’ to a judge’s
selection of an appropriate sentence,” id. (quoting Williams v. New
York, 337 U.S. 241, 247 (1949)), and that Florida courts have
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considered a variety of factors when sentencing a defendant,
including financial resources, employment status, family
obligations, and overall reputation in the community, id. at 964
(citing Noel v. State, 191 So. 3d 370, 379 (Fla. 2016); Imbert v.
State, 154 So. 3d 1174, 1175 (Fla. 4th DCA 2015)). The First
District further explained that “[a] defendant’s remorse or
willingness to accept responsibility comprises part of the whole
picture,” and “speak[s] to a defendant’s character and to the
defendant’s potential for rehabilitation,” which is important because
a sentencing judge is obligated to consider a convicted defendant’s
potential for rehabilitation, or lack thereof, in fashioning a sentence.
Id. (citing Simmons v. State, 419 So. 2d 316, 320 (Fla. 1982)).
The First District addressed several counterarguments to its
change in precedent. First, it discussed the “view that judges may
rely on remorse to reduce a sentence but may not rely on a lack of
remorse to increase a sentence.” Id. at 965. While the First District
acknowledged that this approach was taken by this Court in the
capital case Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983), it
distinguished the instant case, because noncapital sentencing does
not consider aggravating factors to justify a higher sentence as is
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required in capital sentencing. Davis, 268 So. 3d at 965. In this
case, the First District noted, the trial court was authorized to
impose the maximum sentence based only on the fact of the
conviction and without further findings, which are necessary to
impose an aggravated sentence of death in a capital case. Id.
The First District explained that “if [it] held that Davis’s refusal
to take responsibility could not increase his sentence but could
justify not lowering his sentence, [it] would have to figure out which
of those happened.” Id. at 966. But this could prove difficult since
it is unclear whether a particular sentence reflects “an aggravated
sentence or an unmitigated sentence.” Id. The court noted that
none of the minority opinions written in this case “doubts the
legality of considering remorse or acceptance of responsibility to
reduce (or not reduce) a sentence.” Id. 1 The court took issue with
this position, explaining,
1. Indeed, consideration of remorse to reduce a sentence is
specifically authorized in section 921.0026(2)(j), Florida Statutes
(2017), which permits a downward departure from the lowest
permissible sentence in cases where “[t]he offense was committed in
an unsophisticated manner and was an isolated incident for which
the defendant has shown remorse.”
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This further supports our conclusion that these
considerations are, in fact, valid sentencing
considerations. It should go without saying that no up-
versus-down distinction would be an issue with truly
impermissible sentencing factors. With religion, for
example, we would never say a judge could lighten a
sentence for defendants who disavowed Catholicism, so
long as the judge did not enhance sentences for those
who embraced Catholicism. We would instead say—quite
emphatically—that a defendant’s religious faith must not
play any part in the sentence. In other words, we would
say improper sentencing factors should not be factors in
sentencings—up or down.
Id. (citation omitted). To put it another way, the court concluded
that if acceptance of responsibility is a permissible sentencing
consideration to reduce a sentence, then it is simply a proper
sentencing consideration, regardless of its purpose.
Finally, turning to this Court’s decision in Holton v. State, 573
So. 2d 284, 292 (Fla. 1990), another capital case, the First District
rejected the argument that Holton’s prohibition against using pleas
of not guilty against defendants is comparable to the voluntary
allocution in this case. Davis, 268 So. 3d at 967. The First District
reasoned that “when a defendant forgoes permissible benefits of
pleading guilty (such as a lenient sentence), it does not necessarily
follow that his not-guilty plea was unconstitutionally ‘used against
him.’ ” Id. at 966-67. The court continued, “To the extent Davis
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had to choose between maintaining his innocence at sentencing or
seeking a more favorable sentence, he was in no different situation
than defendants facing plea offers every single day.” Id. at 967.
The First District then distinguished cases of true judicial
vindictiveness, which would clearly be violative of due process
rights. Id. at 967-68. But, the court reasoned, withholding
leniency, as the trial court here did, is not equivalent to punishing a
defendant. Id.
Concluding that there was no constitutional violation, the
First District held “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.” Id. at 961. The First
District thus affirmed Davis’s conviction and sentence but certified
the aforementioned question to be one of great public importance.
Id. at 968-69.
We accepted jurisdiction to answer the certified question, but
because the district court did not pass upon the entirety of the
question as framed, we first rephrase it based on the specific
circumstances presented by this case:
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DOES A TRIAL COURT, WHEN IMPOSING A SENTENCE
ON A DEFENDANT WHO HAS VOLUNTARILY CHOSEN
TO ALLOCUTE AND MAINTAIN HIS INNOCENCE AT THE
SENTENCING HEARING, VIOLATE THE DEFENDANT’S
DUE PROCESS RIGHTS BY CONSIDERING THE
DEFENDANT’S FAILURE TO TAKE RESPONSIBILITY FOR
HIS ACTIONS?2
II. ANALYSIS
Davis contends that consideration by a trial court at
sentencing of a defendant’s failure to take responsibility for his or
her actions violates due process “because it infringes on the
defendant’s right to testify and not incriminate himself.” Initial Br.
of Pet. at 13. We disagree. In support of his position, Davis relies
on this Court’s opinion in Holton, a capital case, in which this Court
stated that “[a] trial court violates due process by using a
protestation of innocence against a defendant.” 573 So. 2d at 292.
He relies on another capital case, Pope, which states that “lack of
remorse should have no place in the consideration of aggravating
2. Our rephrasing of the question should not be understood
to suggest that we view lack of remorse as materially different than
failure to take responsibility. Lack of remorse and failure to take
responsibility ordinarily are simply different ways of characterizing
the same attitude manifested by a defendant.
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factors.” 441 So. 2d at 1078. But his reliance on these capital
cases is misplaced.
In Pope, “[t]he trial court, in finding the murder especially
heinous atrocious or cruel commented that ‘the Defendant has [not]
shown any remorse, having elected to steadfastly deny his guilt.’ ”
Id. at 1077. The standard jury instruction explaining the heinous,
atrocious, or cruel capital aggravator in effect at the time included a
definition of “cruel” that “tended to focus attention on the mindset
of the murderer—his consciencelessness or pitilessness.” Id. Thus,
we explained that “lack of remorse came to be considered relevant
to the determination under this aggravating factor.” Id. Before
ultimately concluding that any error was harmless because “the
applicability of this aggravating factor was proved beyond a
reasonable doubt without regard to Pope’s remorse or lack thereof,”
id. at 1078, this Court wrote that “[t]o equate a defendant’s not-
guilty plea with lack of remorse which may be considered in
weighing an aggravating circumstance in support of imposition of
the death penalty would in effect punish the defendant for
exercising rights of due process,” id. at 1077. The Court went on to
conclude that “any consideration of defendant’s remorse” is
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“extraneous to the question of whether the murder of which he was
convicted was especially heinous, atrocious or cruel.” Id. at 1078.
The Court reasoned that “[e]vents occurring after death, no matter
how revealing of depravity and cruelty, are not relevant to the
atrocity of the homicide.” Id.Having resolved the issue on that basis, the Court went on to
observe:
Unfortunately, remorse is an active emotion and its
absence, therefore, can be measured or inferred only
from negative evidence. This invites the sort of mistake
which occurred in the case now before us—inferring lack
of remorse from the exercise of constitutional rights.
This sort of mistake may, in an extreme case, raise a
question as to whether the defendant has been denied
some measure of due process, thus mandating a remand
for reconsideration of the sentence. For these reasons,
we hold that henceforth lack of remorse should have no
place in the consideration of aggravating factors. Any
convincing evidence of remorse may properly be
considered in mitigation of the sentence, but absence of
remorse should not be weighed either as an aggravating
factor nor as an enhancement of an aggravating factor.
Id.But Pope is inapplicable here. This case is not a capital case
requiring consideration of aggravating factors. In capital cases,
only statutory aggravating factors may be considered, and a
statutory aggravating factor is required to be proven beyond a
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reasonable doubt before a sentence of death may be imposed. See
§ 921.141(2)(b)2., Fla. Stat. (2020) (“If the jury . . . [u]nanimously
finds at least one aggravating factor, the defendant is eligible for a
sentence of death . . . .”); State v. Poole, 297 So. 3d 487, 491 (Fla.
2020) (upholding this Court’s prior ruling that “a jury must
unanimously find the existence of a statutory aggravating
circumstance beyond a reasonable doubt”), cert. denied, 141 S. Ct.
1051 (2021). In a noncapital case, the statutory maximum
sentence is a legal sentence by virtue of the conviction alone. See §
921.002(1)(g), Fla. Stat. (2017) (“The trial court judge may impose a
sentence up to and including the statutory maximum for any
offense . . . .”). As the First District correctly observed:
In Davis’s case, . . . the judge had statutory authority to
impose a sentence of up to fifteen years. § 775.082(1)(d),
Fla. Stat. He could do so with a remorseful defendant,
and he could do so with an unremorseful defendant. He
could do so with a defendant taking responsibility for his
crimes, and he could do so with a defendant unwilling to
take responsibility. The conviction alone was enough to
justify the sentence. No “aggravator” or additional
findings were necessary.
Davis, 268 So. 3d at 965. In other words, the Legislature
empowered the trial court to sentence Davis to fifteen years’
imprisonment whether or not he took responsibility for his actions,
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because it was the fact of his conviction that subjected him to a
sentence up to and including the statutory maximum. So the
statutory scheme applicable here, unlike the statute governing
aggravating circumstances in capital cases that was applied in
Pope, does not foreclose consideration in sentencing of the
defendant’s failure to accept responsibility.
In Holton, the trial court declined to apply the proposed
mitigating circumstance that the capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of the law was substantially impaired. 573 So.
2d at 292. In finding that this mitigating circumstance was not
established, the trial court wrote, “The defendant testified he was
addicted to drugs but still maintained his innocence of these
offenses. This factor would not apply in view of that sworn
testimony.” Id.
On appeal, this Court said that “[t]he fact that a defendant has
pled not guilty cannot be used against him or her during any stage
of the proceedings because due process guarantees an individual
the right to maintain innocence even when faced with evidence of
overwhelming guilt,” and that “entering a plea of not guilty does not
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preclude consideration by the sentencer of matters relevant to
mitigation.” Id. In sum, this Court concluded that the trial court
had used the defendant’s not guilty plea as an improper basis for
rejecting a mitigating circumstance that was established.
Ultimately, this Court concluded that any error was harmless
because Holton’s drug abuse was considered mitigating under a
different mitigating circumstance. Id. at 298. Holton’s broad,
unqualified statement that “using a protestation of innocence
against a defendant” “violates due process,” id. at 292, goes far
beyond the facts presented and is unnecessary to the Court’s
decision. It constitutes dicta that we expressly disapprove—dicta
that cannot be reconciled with the Supreme Court’s decision in
United States v. Grayson, 438 U.S. 41 (1978), which we discuss
below.
The facts of this case are entirely distinguishable from Holton.
This again is not a capital case that involves a weighing of
aggravating factors and mitigating circumstances in order to
determine a sentence. “Judges in noncapital cases . . . do not
consider ‘aggravators’ and ‘mitigators’ in the same sense that
capital sentencers do.” Davis, 268 So. 3d at 965.
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If a judge gives an unremorseful defendant a longer
sentence than he might have given a remorseful
defendant, we often will never know whether the
resulting differential flowed from an “aggravated”
sentence or an “unmitigated” sentence. There is no
baseline sentence, no upward or downward departure—
just a sentence that involved a judge’s consideration (in
some fashion) of the offense and the defendant’s
characteristics.
Id. at 966.3
And the fact that Davis maintained his innocence and the trial
court observed that he failed to take responsibility for his actions
did not result in the trial court “preclud[ing] consideration” of other
relevant sentencing factors, particularly because Davis did not offer
any. During his allocution, Davis discussed only his innocence. He
3. This line of analysis helps explain why our decision in State
v. Mischler, 488 So. 2d 523 (Fla. 1986), has no persuasive force
here. In Mischler, we cited Pope for the proposition “that lack of
remorse cannot be inferred from the exercise of constitutional
rights.” 488 So. 2d at 526. Although Mischler involved a noncapital
case, it nonetheless arose in a context dissimilar to the context
presented by this case. Mischler addressed the issue of what
constituted “clear and convincing reasons” for an upward departure
sentence under the guidelines sentencing scheme then in effect. Id.
at 525. The trial court found the lack of remorse to be a ground for
an upward departure sentence based on statements of the
defendant in the presentence report that protested her innocence
and criticized the criminal justice system. Id. at 526. We
determined that such “facts do not support a finding of lack of
remorse” under the applicable “clear and convincing” standard. Id.Of course, no such standard is applicable here.
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offered no other reasons to the court why a sentence less than the
maximum should be imposed. The trial judge therefore had no
opportunity to “preclude consideration” of other matters offered by
Davis that might have been relevant to the sentence. Indeed, Davis
specifically told the trial court that he was not asking for leniency
because he did nothing wrong. (“If I did anything wrong, or said
anything that’s inappropriate, I would apologize. Right now, and I
ask -- I would be asking for leniency, but I did nothing wrong. I am
not guilty of the charge that I’m accused of. I am innocent.”)
Instead, he accused multiple parties of misconduct, blamed the
driver of the car, the police, his lawyer, and the trial court,
repeatedly attempted to explain his interpretations of the law to the
judge, and asked the judge to consider evidence that was not
introduced at the trial.
The lowest permissible sentence under the Criminal
Punishment Code, in accordance with Davis’s sentencing
scoresheet, was 118.125 months (approximately nine years and ten
months) and the statutory maximum sentence was fifteen years.
The State requested that the court impose the maximum sentence
because of Davis’s numerous previous convictions and violent
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history, while defense counsel urged the court to impose the lowest
permissible sentence per the scoresheet. The law therefore provided
the trial judge with a range from approximately ten to fifteen years
to which he could sentence Davis. In fashioning the sentence, the
trial court considered that Davis had “an extensive violent history
here and a lot of it involves a firearm,” including, “a second degree
murder, attempted second degree murder, attempted armed
robbery with a firearm, armed robbery with a firearm, aggravated
assault with a deadly weapon, discharging a firearm on school
property, aggravated battery with a deadly weapon, battery on a law
enforcement officer, felony battery.” The court categorized this as “a
violent, unfortunate history that we’re dealing with” and noted that
the offense for which Davis was to be sentenced also involved a
firearm.
The trial judge had numerous valid reasons for imposing the
maximum sentence here, but, as stated previously, he did not need
to articulate any reason. The judge was statutorily authorized to
impose a sentence up to fifteen years based solely on the fact of the
conviction, regardless of any sentencing considerations and
whether or not Davis took responsibility for his actions. “The
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conviction alone was enough to justify the sentence. No ‘aggravator’
or additional findings were necessary.” Davis, 268 So. 3d at 965-
66. The Supreme Court has long recognized that due process
permits “a sentencing judge [to] exercise a wide discretion in the
sources and types of evidence used to assist him in determining the
kind and extent of punishment to be imposed within limits fixed by
law.” Williams, 337 U.S. at 246. The Court has “never [called into]
doubt[] the authority of a judge to exercise broad discretion in
imposing a sentence within a statutory range.” United States v.
Booker, 543 U.S. 220, 233 (2005). Whether a defendant says
nothing at sentencing or takes full responsibility and is able to
show that he is a pillar of the community, a judge retains the
discretion to impose the maximum sentence.
Further, while a defendant does have the right to maintain his
innocence by pleading not guilty and going to trial, and the right to
remain silent, Davis chose to voluntarily allocute at his sentencing
and thus waived his right to remain silent. And because Davis
waived the right to maintain his silence, the trial court did not
violate Davis’s right to due process by considering the words that
Davis voluntarily offered in imposing a sentence. “Just as a jury
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weighs a defendant’s testimony once he waives his Fifth
Amendment privilege at trial, a judge may consider a defendant’s
freely offered allocution . . . during sentencing.” United States v.
Stanley, 739 F.3d 633, 652 (11th Cir. 2014). This is true even if
those words are detrimental to the defendant.
Nor was Davis forced to choose between allocution and
maintenance of his innocence; he certainly could have allocuted
without voicing his disagreement with the verdict, blaming the
driver, the police, his lawyer, and the trial court for his conviction,
and attempting to explain his personal interpretations of the law to
the judge. He could have asked for leniency without admitting his
guilt. He could have provided the judge with reasons to impose a
sentence less than the maximum besides his claimed innocence.
But he instead chose to make a lengthy statement claiming
innocence, denying responsibility, and placing blame for his
conviction on the alleged misconduct of others. The trial court was
under no obligation to ignore such statements and did not err in
considering those statements in imposing the legal sentence here.
“[O]ur system need not treat as equals an unrepentant convict and
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one who shows remorse.” United States v. McClain, 2 F.3d 205, 207
(7th Cir. 1993).4
In Grayson, 438 U.S. at 44, the Court considered the propriety
of the following statement by a sentencing judge considering the
defendant’s testimony: “[I]t is my view that your defense was a
complete fabrication without the slightest merit whatsoever. I feel it
is proper for me to consider that fact in the sentencing, and I will do
so.” (Emphasis removed.) In rejecting the defendant’s due process
argument—including a claim that allowing a sentencing judge to
consider the falsity of testimony given by the defendant would chill
the defendant’s right to testify—the Court stated that “[a]
defendant’s truthfulness or mendacity while testifying on his own
behalf, almost without exception, has been deemed probative of his
attitudes toward society and prospects for rehabilitation and hence
relevant to sentencing.” 438 U.S. at 50. The Court thus concluded
that “the defendant’s readiness to lie under oath—especially when,
4. We agree with the First District that the record here does
not remotely suggest that the trial court punished the defendant for
exercising his constitutional right to go to trial. Davis, 260 So. 2d
at 968. And we need not speculate here about what facts would
need to be proven to demonstrate a due process violation of that
nature.
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as here, the trial court finds the lie to be flagrant—may be deemed
probative of his prospects for rehabilitation.” Id. at 52.
According to the Court, “The right guaranteed by law to a
defendant is narrowly the right to testify truthfully in accordance
with the oath—unless we are to say that the oath is mere ritual
without meaning.” Id. at 54. Because there is no “protected right”
to lie to the court, any potential “chilling effect on a defendant’s
decision to testify falsely” “is entirely permissible.” Id. The Court
therefore “reaffirm[ed] the authority of a sentencing judge to
evaluate carefully a defendant’s testimony on the stand,
determine—with a consciousness of the frailty of human
judgment—whether that testimony contained willful and material
falsehoods, and, if so, assess in light of all the other knowledge
gained about the defendant the meaning of that conduct with
respect to his prospects for rehabilitation and restoration to a
useful place in society.” Id. at 55.
We see no reason to disagree with the teachings of Grayson.
Nor do we see any reason to deny the relevance of those teachings
to the issue presented by this case. Just as in Grayson, the
sentencing judge here was entitled to consider testimony that
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indicated the defendant’s unwillingness to accept the truth and to
take responsibility for his own conduct.
III. CONCLUSION
We hold that when a defendant voluntarily chooses to allocute
at a sentencing hearing, the sentencing court is permitted to
consider the defendant’s freely offered statements, including those
indicating a failure to accept responsibility. Thus, we answer the
rephrased question in the negative and approve the result in the
decision on review.
It is so ordered.
LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.
GROSSHANS, J., concurs with an opinion.
POLSTON, J., dissents with an opinion, in which LABARGA, J.,
concurs.
LABARGA, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
GROSSHANS, J., concurring.
I agree with the majority’s holding that due process and the
right against compelled self-incrimination do not preclude a
sentencing court from considering a defendant’s refusal to take
responsibility for his or her criminal conduct when the defendant
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freely speaks at sentencing. As a general matter, personal
constitutional rights may be waived. See In re Shambow’s Estate,
15 So. 2d 837, 837 (Fla. 1943) (“It is fundamental that
constitutional rights which are personal may be waived.”). For
example, a defendant may waive the right to trial by jury, the right
to counsel, the right to confront witnesses, and the protection
against unreasonable searches and seizures. See United States v.
Mezzanatto, 513 U.S. 196, 201 (1995); United States v. Garey, 540
F.3d 1253, 1263 (11th Cir. 2008); United States v. Basinski, 226
F.3d 829, 834 (7th Cir. 2000).
The right against compelled self-incrimination is no different.
See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966) (recognizing
that a defendant in custody may waive the right to remain silent);
Miller v. State, 208 So. 3d 178, 181 (Fla. 1st DCA 2016) (“When the
defendant waives the privilege against self-incrimination and freely
speaks to police, the State is free to treat the defendant’s testimony
regarding those statements like that of any other witness.” (citing
Ivey v. State, 586 So. 2d 1230, 1234 (Fla. 1st DCA 1991))); Allen v.
State, 322 So. 3d 589, 602 (Fla. 2021) (noting that a defendant may
waive the right to remain silent at trial, stating: “[W]hen a defendant
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chooses to testify in a criminal case, the Fifth Amendment does not
allow him to refuse to answer related questions on cross-
examination.”) (alteration in original) (quoting Kansas v. Cheever,
571 U.S. 87, 94 (2013))); State v. Heath, 343 So. 2d 13, 15-16 (Fla.
1977) (holding that an agreement to accept the terms of probation
waives the Fifth Amendment privilege against self-incrimination
with respect to information required to be disclosed pursuant to
certain probationary terms).
Here, Davis spoke voluntarily at sentencing, thereby waiving
his constitutional right against compelled self-incrimination. Once
he waived this right, there could be no basis for claiming that the
trial court violated due process for considering his statements in
determining a proper sentence.
And Davis’s uncoerced words were relevant to the severity of
his criminal punishment. Specifically, through his words, Davis
manifested a refusal to take responsibility for his criminal conduct,
a matter bearing on his amenability to rehabilitation. Thus, the
sentencing court properly considered Davis’s refusal to accept
responsibility for his criminal conduct in imposing the maximum
sentence.
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Reaching a different conclusion, the dissent 5 looks to the
Florida Constitution, which provides, “No person shall be deprived
of life, liberty or property without due process of law . . . or be
compelled in any criminal matter to be a witness against oneself.”
Art. I, § 9, Fla. Const. According to the dissent, this provision
affords a defendant the constitutional right to maintain his or her
innocence at sentencing, regardless of whether he or she freely
speaks. Dissenting op. at 29, 33-43.
However, nothing in the text of article I, section 9 confers such
an unwaivable right or forbids consideration of Davis’s voluntary
statements. Aside from this lack of textual support, the dissent’s
position is also inconsistent with federal case law holding that the
self-incrimination clause of the United States Constitution—nearly
identical to its Florida counterpart—does not bar a sentencing court
from considering a defendant’s failure to take responsibility or lack
of remorse. See United States v. Stanley, 739 F.3d 633, 652 (11th
Cir. 2014) (“Harris’s argument confuses the nature of the Fifth
Amendment privilege. During sentencing, a court ‘may not weigh
5. For purposes of this opinion, I refer to the dissent authored
by Justice Polston, joined by Justice Labarga.
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the exercise of [Fifth Amendment] rights against the defendant.’
But a court may take into account a defendant’s freely offered
statements indicating a lack of remorse. Just as a jury weighs a
defendant’s testimony once he waives his Fifth Amendment privilege
at trial, a judge may consider a defendant’s freely offered allocution
regarding remorse during sentencing.” (alteration in original)
(citations omitted) (quoting United States v. Rodriguez, 959 F.2d
193, 197 (11th Cir. 1992))); accord United States v. McKee, 752 F.
App’x. 462, 466 (9th Cir. 2018); United States v. Keskes, 703 F.3d
1078, 1090-91 (7th Cir. 2013); United States v. Mitchell, 681 F.3d
867, 885 (6th Cir. 2012); United States v. Douglas, 569 F.3d 523,
527-28 (5th Cir. 2009); United States v. Abu Ali, 410 F. App’x. 673,
681 (4th Cir. 2011); United States v. Bines, 309 F. App’x. 580, 582
(3d Cir. 2009); United States v. Wallace, 755 F. App’x. 63, 65–66 (2d
Cir. 2018); United States v. Cruzado-Laureano, 527 F.3d 231, 236-
37 (1st Cir. 2008).
Not relying on the text of the Florida Constitution or federal
case law, the dissent instead finds support in this Court’s
jurisprudence—mainly Pope v. State, 441 So. 2d 1073 (Fla. 1983),
and Holton v. State, 573 So. 2d 284 (Fla. 1990). I agree with the
- 25 -
majority that Pope and Holton are distinguishable. Both were
capital cases governed by a statute not applicable to sentencing in
the noncapital context. Under that statute, refusal to take
responsibility or show remorse is not relevant to any of the
aggravating factors for consideration in sentencing a capital
defendant. § 921.141(6), Fla. Stat (2020) (providing an exclusive
list of aggravating factors). In contrast, a sentencing court in a
noncapital case may consider a broader set of facts when deciding
whether to impose the harshest sentence within the statutory
range.6
Though Holton is distinguishable, statements in that case
arguably support the dissent. In Holton, this Court stated, “A trial
court violates due process by using a protestation of innocence
against a defendant. This applies to the penalty phase as well as to
the guilt phase under article I, section 9 of the Florida
Constitution.” 573 So. 2d at 292. Though it is dicta, the district
6. Some of the district court decisions cited by the dissent
also involved a defendant’s silence at sentencing or a defendant’s
not-guilty plea. E.g., Green v. State, 84 So. 3d 1169, 1172 (Fla. 3d
DCA 2012). Unlike the defendants in those cases, Davis made
voluntary statements at sentencing. Thus, those factually
dissimilar cases are unpersuasive here.
- 26 -
courts have relied on this statement in evaluating sentencing
challenges in noncapital cases. See, e.g., Pierre v. State, 259 So. 3d
859, 861 (Fla. 4th DCA 2018). Consequently, I agree with the
majority’s express disapproval of the Holton dicta as inconsistent
with today’s decision. Majority op. at 13.
Finally, one statement of the majority warrants a brief
discussion. The majority states, “[T]he Legislature empowered the
trial court to sentence Davis to fifteen years’ imprisonment whether
or not he took responsibility for his actions, because it was the fact
of his conviction that subjected him to a sentence up to and
including the statutory maximum.” Majority op. at 12. I do not
interpret this statement as meaning that a sentencing court can
properly consider any and all facts so long as the sentence
ultimately falls within the statutory range. Thus, in my view,
today’s decision would not excuse a court’s consideration of an
unconstitutional factor, such as race or religion, in imposing a
sentence up to and including the statutory maximum. Accordingly,
if a court considers an unconstitutional factor in imposing the
sentence, that sentence would still be unlawful even if it was within
the statutory range. But here, as we have concluded, the
- 27 -
sentencing court considered no such unconstitutional factor and
was fully authorized to sentence Davis to the statutory maximum
based on his conviction.
Thus, for the reasons given above, I join the majority opinion
in its entirety.
POLSTON, J., dissenting.
I dissent from the majority’s decision holding that a trial court
can punish a defendant for his lack of remorse during a sentencing
proceeding. This result is inconsistent with our precedent
interpreting article I, section 9 of the Florida Constitution, the
consensus among the district courts of appeal, and has no basis in
our statutory sentencing scheme. Showing remorse is admitting
you did something wrong—an admission of guilt. And increasing a
defendant’s sentence based on the failure to show remorse is
punishing a defendant for failing to admit guilt. Punishing someone
unless they confess guilt of a crime is a violation of due process and
the right against self-incrimination. Accordingly, I would hold that
a trial court violates a defendant’s constitutional right to due
process and right against self-incrimination where it penalizes a
defendant for the failure to admit guilt.
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I. BACKGROUND
Alvin Davis was convicted of possession of a firearm as a
convicted felon. Davis v. State, 268 So. 3d 958, 961 (Fla. 1st DCA
2019). The statutory maximum for this offense was 15 years, but
Davis’ sentencing scoresheet calculated the minimum sentence to
be approximately 10 years. At his sentencing hearing, Davis elected
to speak on his behalf and made the following statement:
Your Honor, I’d like to thank you for letting me talk
on the record. I do not understand why I was found
guilty of possessing a gun I never touched, neither did I
know was in that car. It’s clear by the evidence that I am
only a scapegoat for the driver of that vehicle. The
bullets that was in that glove compartment would have
proven the driver’s DNA on it. So, the State, nor my
attorney refused to have it tested because it would have
proved the driver was lying.
Constructive possession means I had knowledge
and control over that gun. I did not, and nothing can
prove that. The police officer clearly on the record
coerced and manipulated the driver into saying that it
was my gun. They recorded it as saying even to him that
he could smoke weed and not be arrested. They also told
him, a juvenile, that if he was going to smoke weed he
should buy a better quality of weed. It is all on the
transcript and you read it and seen it firsthand in the
MAVRIC.[7]
How could this injust (phonetic) take place in this
courtroom without my lawyer taking part? Evidence in
7. MAVRIC is the in-car camera system used to record audio
and video of traffic stops.
- 29 -
the law of construction possession proves me right. I
understand I cannot get any justice here in this
courtroom. I trust my life and liberty in the hands of the
First DCA Court who knows firsthand the illegal action
taking place in this Leon County courtroom assistance,
most of these appointed court lawyers.
If I did anything wrong, or said anything that’s
inappropriate, I would apologize. Right now, and I ask--I
would be asking for leniency, but I did nothing wrong. I
am not guilty of the charge that I’m accused of. I am
innocent. And the facts, evidence and the law proves me
right. I will allow the First DCA to correct this injust
(phonetic).
I have no knowledge of a firearm. I got charged with
possession of a firearm. That means it came off my
possession. They never found me with any firearm on my
person. I knew nothing about the MAVRIC transcript
that you read, Your Honor, but I know you studied law
for many years, I know you looked at that MAVRIC
transcript. I know you read it, just out of curiosity. I
know you know law from the front to the back. I know
you seen the injust (phonetic). I know you seen him
coerce with him. I know you read it.
Your Honor, I feel like I’m auctioned off to prison,
my freedom, and nothing that I went to trial for, nobody,
not even the evidence, not even the firearm had my
fingerprints or my DNA on it. I came in front of you,
Your Honor. On October 27th, I told you she refused to
have the evidence suppressed, the ammunition. She
refused. She coerced with the state Attorney about the
MAVRIC. They both agreed to not to even talk about the
MAVRIC. I knew nothing about it. That wasn’t my
agreement. I wanted to show the MAVRIC. I wanted to
talk about the MAVRIC. That was my defense.
It clearly in the MAVRIC you see him coercing with
him. They’re talking to a juvenile. If he’s on weed and
marijuana at the time of the stop, he can’t give a
statement without his parent present. He can’t make a
statement at all because he’s on drugs and alcohol. He
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admitted to them. They told him they will show him
leniency if he will make a statement saying that was my
firearm they will let him go home. He drove away. I went
to jail. I’m the only one went to jail. By law, he was in
possession of that car. He’s responsible for everything in
that car. He’s a primary driver of that vehicle. Thank
you, Your Honor. I ask will you consider--I know you
read the MAVRIC transcript. I know.
The trial court concluded the proceedings by sentencing Davis
to 15 years, the statutory maximum, and addressed Davis:
THE COURT: All right. Thank you. All right. Mr.
Davis, quite frankly we’re not here to retry the facts of the
case. I heard the evidence. It was put before a jury and
they found beyond a reasonable doubt that you are guilty
of the charged offense. And from my review of the
evidence, and from what I heard in the courtroom and
the testimony and the evidence provided, quite frankly I
think they got it right.
And I can see here by your score sheet, you have an
extensive violent history here and a lot of it involves a
firearm. We have a second degree murder, attempted
second degree murder, attempted armed robbery with a
firearm, armed robbery with a firearm, aggravated
assault with a deadly weapon, discharging a firearm on
school property, aggravated battery with a deadly
weapon, battery on a law enforcement officer, felony
battery. Just a violent, unfortunate history that we’re
dealing with. And a lot of it involves a firearm. And now
we have a new offense that involves a firearm again.
And quite frankly, you know, they found you with
the firearm before any harm could come of it, because
who knows what would have happened–
THE DEFENDANT: They found me with the
firearm?
THE COURT: --if there was an opportunity to use
that firearm in the future. And so that is one of the good
- 31 -
things that came out of it was that there wasn’t that
opportunity.
You still fail to take any responsibility for your
actions. And considering your history here, your failure
to take any responsibility, the nature of the crime, the
fact that it involves a firearm, the Court will sentence you
to 15 years in the Department of Corrections, which is
the statutory maximum.
On appeal, the First District Court of Appeal, sitting en banc,
receded from its own precedent to hold that “lack of remorse and
refusal to accept responsibility can be valid sentencing
considerations when sentencing within the statutory range.” Davis,
268 So. 3d at 961. Davis now asks us to quash the decision of the
First District.
II. ANALYSIS
Article I, section 9 of the Florida Constitution provides: “No
person shall be deprived of life, liberty or property without due
process of law, or be twice put in jeopardy for the same offense, or
be compelled in any criminal matter to be a witness against oneself.”
Art. I, § 9, Fla. Const. (emphasis added). Until now, this Court has
interpreted this provision to protect a defendant’s right to maintain
his innocence at sentencing without fear of retribution. Beginning
with Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983), we held that
- 32 -
a defendant’s lack of remorse did not bear on the consideration of
aggravating factors in capital sentencing. 8 The defendant in that
case “steadfastly den[ied] his guilt,” which the trial court interpreted
as a lack of remorse and used as a fact to establish the existence of
the heinous, atrocious, and cruel aggravating circumstance. Id. at
1077. But we distinguished the defendant’s denial of guilt from the
defendant’s statements about the crime, explaining:
Unfortunately, remorse is an active emotion and its
absence, therefore, can be measured or inferred only
from negative evidence. This invites the sort of mistake
which occurred in the case now before us—inferring lack
of remorse from the exercise of constitutional rights.
This sort of mistake may, in an extreme case, raise a
question as to whether the defendant has been denied
some measure of due process, thus mandating a remand
for reconsideration of the sentence. For these reasons,
we hold that henceforth lack of remorse should have no
place in the consideration of aggravating factors. Any
convincing evidence of remorse may properly be
considered in mitigation of the sentence, but absence of
remorse should not be weighed either as an aggravating
factor nor as an enhancement of an aggravating factor.
Id. at 1078.
8. Prior to Pope, we recognized that lack of remorse was an
improper aggravating circumstance in capital sentencing in Jackson
v. Wainwright, 421 So. 2d 1385, 1387 (Fla. 1982), and McCampbell
v. State, 421 So. 2d 1072, 1075 (Fla. 1982), which both rejected
lack of remorse as a statutory aggravator in and of itself.
- 33 -
In State v. Mischler, 488 So. 2d 523, 526 (Fla. 1986), we held
that, in noncapital sentencing, lack of remorse inferred from an
exercise of constitutional rights or an assertion of innocence was
not a clear and convincing reason to support an upward departure
sentence. As we explained:
The trial court’s finding that Mischler was not remorseful
is based entirely on her statement in the presentence
report that she did not commit the alleged theft, that the
employer was the culpable party, and that she lost at
trial because “he [the victim] had money and those with
money rule the world.” These statements cannot be
termed as lack of remorse. Rather, Mischler was merely
maintaining her innocence and voicing her opinion on
the workings of the criminal justice system in America.
In Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983),
we held that lack of remorse cannot be inferred from the
exercise of constitutional rights. Similarly, in Hubler v.
State, 458 So. 2d 350 (Fla. 1st DCA 1984), the court held
that lack of remorse cannot be proven solely by the fact
that a defendant maintains his innocence. Thus, we hold
that lack of remorse to support a departure sentence
cannot be inferred from either the mere exercise of a
constitutional right or a continuing assertion of
innocence.
Mischler, 488 So. 2d at 526.
And in Holton v. State, 573 So. 2d 284, 292 (Fla. 1990), we
expressed similar concerns while holding that protestations of
innocence do not preclude a court from considering relevant
statutory mitigators in capital sentencing. The defendant in Holton
- 34 -
asked the court to consider an impaired capacity statutory
mitigator, but the trial court did not apply this mitigator because it
found that the defendant had demonstrated his capacity to
appreciate the criminality of his actions by maintaining his
innocence. Id. at 292-93. This Court found error and observed:
A defendant has the right to maintain his or her
innocence and have a trial by jury. Art. I, § 22, Fla.
Const. The protection provided by the fifth amendment
to the United States Constitution guarantees an accused
the right against self-incrimination. The fact that a
defendant has pled not guilty cannot be used against him
or her during any stage of the proceedings because due
process guarantees an individual the right to maintain
innocence even when faced with evidence of
overwhelming guilt. A trial court violates due process by
using a protestation of innocence against a defendant.
This applies to the penalty phase as well as to the guilt
phase under article I, section 9, of the Florida
Constitution.
Id. at 292. Significantly, in Holton, we concluded that where a
defendant pleads not guilty and maintains his innocence at
sentencing, article I, section 9 of the Florida Constitution prohibits
the trial court from using that fact against him. See id.
To summarize, we have recognized that lack of remorse may
not be inferred from a defendant’s exercise of constitutional rights
and that the Florida Constitution protects a defendant’s right to
- 35 -
maintain his innocence at sentencing. The majority attempts to
distinguish and isolate our precedent in Pope and Holton as
applicable only in the capital context due to the consideration of
aggravating factors in capital cases. See majority op. at 7-11.
However, we have applied these principles in capital as well as
noncapital cases. Our precedent in Holton, as well as Pope and
Mischler, dictates that the protection against self-incrimination
enumerated in article I, section 9 of the Florida Constitution
extends to protect a defendant from being penalized for maintaining
his innocence throughout his proceedings. The majority has not
receded from this precedent, and I see no reason to depart from it.
Further, the district courts consistently apply the rule that a
trial court violates the defendant’s due process rights when it
considers lack of remorse in sentencing where a defendant has
maintained innocence throughout proceedings. See, e.g., Jackson
v. State, 39 So. 3d 427, 428 (Fla. 1st DCA 2010) (listing cases that
show as “established law” that a “statement made by the trial court
[that] can reasonably be read only as conditioning the sentence, at
least in part, upon [the defendant]’s claim of innocence” violates
due process), receded from by Davis, 268 So. 3d at 965; Whitmore v.
- 36 -
State, 27 So. 3d 168, 171 (Fla. 4th DCA 2010) (listing a “long,
unwavering line of cases” that hold that “a trial court violates due
process by using a protestation of innocence against a defendant at
sentencing”); Jiles v. State, 18 So. 3d 1216, 1216-17 (Fla. 5th DCA
2009) (reversing when the trial court noted at sentencing that the
defendant “maintained his innocence at trial and during
sentencing”); Bracero v. State, 10 So. 3d 664, 665-66 (Fla. 2d DCA
2009) (finding a due process violation when the defendant spoke at
sentencing about his claims of innocence, alleging his conviction
was motivated by conspiracy, and the trial court explicitly said the
sentence was imposed in part due to his lack of remorse); see also
Corbitt v. State, 220 So. 3d 446, 450-54 (Fla. 5th DCA 2016);
Donaldson v. State, 16 So. 3d 314, 314 (Fla. 4th DCA 2009); Soto v.
State, 874 So. 2d 1215, 1217 (Fla. 3d DCA 2004).
The district courts rightly recognize that not only is this rule
compelled by our precedent, but it is also vital to the exercise of a
defendant’s constitutional rights. See, e.g., Catledge v. State, 255
So. 3d 937, 940 (Fla. 1st DCA 2018) (“The stated reason for the
general rule . . . is to ensure that a defendant is not unfairly
punished for his plea of not guilty and the exercise of his
- 37 -
constitutional rights to remain silent and to proceed to a jury trial.”
(quoting Corbitt, 220 So. 3d at 450-51)), receded from by Davis, 268
So. 3d at 965; Allen v. State, 211 So. 3d 48, 54 (Fla. 4th DCA 2017)
(“Allowing a sentencing court to penalize a defendant for not
admitting guilt after a conviction or adjudication would jeopardize
various rights attached to these post-trial processes and chill a
defendant’s right to remain silent.”); Green v. State, 84 So. 3d 1169,
1172 (Fla. 3d DCA 2012) (“When a defendant chooses to remain
silent at a sentencing hearing, and the trial court regards this
silence as a lack of remorse or a failure to accept responsibility, it
causes an impermissible chilling effect upon a defendant’s due
process rights, and cannot serve as a constitutionally permissible
sentencing consideration.”); Gilchrist v. State, 938 So. 2d 654, 657-
58 (Fla. 4th DCA 2006) (“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.”). I concur and find that our
precedent compels a different result than the one reached by the
majority and the First District below.
- 38 -
Here, in sentencing, the trial court expressly considered Davis’
refusal to take responsibility: “You still fail to take any responsibility
for your actions. And considering your history here, your failure to
take any responsibility, the nature of the crime, the fact that it
involves a firearm, the Court will sentence you to 15 years in the
Department of Corrections, which is the statutory maximum.”
(Emphasis added.) Davis’ due process rights and right against self-
incrimination were violated by being punished at sentencing for not
admitting his guilt. The plain language of article I, section 9
supports this: “No person shall be deprived of life, liberty or
property without due process of law, or be twice put in jeopardy for
the same offense, or be compelled in any criminal matter to be a
witness against oneself.” (Emphasis added). According to Justice
Grosshans’ concurring opinion, because Davis voluntarily spoke, he
waived his rights to due process and against self-incrimination.
Concurring op. at 24-25. However, simply because Davis chose to
speak and maintain his innocence does not mean he should be
punished for the failure to admit guilt. Accepting responsibility is
an admission of guilt and punishing someone for the failure to
admit guilt is a violation of due process and the right against self-
- 39 -
incrimination. If law enforcement cannot coerce an admission of
guilt from a defendant without violating due process, see Wilson v.
State, 242 So. 3d 484, 491 (Fla. 2d DCA 2018) (explaining that the
Florida Constitution prohibits the admission of governmentally
compelled statements), a court cannot likewise coerce an admission
of guilt from a defendant.
The judicial process, which is grounded on constitutional due
process, protects a defendant’s right to maintain innocence and
does not punish a defendant for doing so. Moreover, this due
process protection extends beyond the defendant being found guilty
at the trial court level. Indeed, as Justice Labarga notes in his
separate dissenting opinion, our judicial proceedings include
appeals from trials that are occasionally overturned and lead to the
defendant ultimately being released. A defendant’s right to
maintain his or her innocence remains paramount in these
proceedings.
The majority relies on United States v. Grayson, 438 U.S. 41(1978), to support its assertion that “the sentencing judge here was
entitled to consider testimony that indicated the defendant’s
unwillingness to accept the truth and to take responsibility for his
- 40 -
own conduct.” Majority op. at 21. However, I disagree that
Grayson is relevant to the issue presented in this case. In Grayson,
the trial court ruled that “it is my view that your defense was a
complete fabrication without the slightest merit whatsoever. I feel it
is proper for me to consider that fact in the sentencing, and I will do
so.” 438 U.S. at 44 (emphasis in original). No such ruling was
made by the trial court in this case. Instead, the trial court
improperly considered lack of remorse in its sentencing. There is a
distinct difference between the consideration of the defendant’s
false testimony during trial based on a fabricated defense and the
consideration of the defendant’s lack of remorse when the
defendant maintains his innocence at sentencing. The federal
circuit court cases cited by Justice Grosshans’ concurring opinion
are distinguishable. Concurring op. at 25-26. The federal
sentencing framework differs from Florida’s framework in numerous
ways, including the express authorization to consider all relevant
information at sentencing and a downward adjustment provision
that provides guidance on how to demonstrate remorse. See 18
U.S.C. § 3661 (2018) (“No limitation shall be placed on the
information concerning the background, character, and conduct of
- 41 -
a person convicted of an offense which a court of the United States
may receive and consider for the purpose of imposing an
appropriate sentence.”); U.S. Sentencing Guidelines Manual § 3E1.1
(U.S. Sentencing Comm’n 2018) (explicitly permitting a court to
decrease a defendant’s sentence “if the defendant clearly
demonstrates acceptance of responsibility for his offense”).
The First District found that the Criminal Punishment Code
(CPC) authorizes a consideration of lack of remorse at sentencing,
but this assertion is incorrect for two reasons. First, the CPC does
not explicitly authorize consideration of lack of remorse when
sentencing within the range. Chapter 921, Florida Statutes,
authorizes a trial court to impose a sentence lower than the
minimum sentence if “[t]he offense was committed in an
unsophisticated manner and was an isolated incident for which the
defendant has shown remorse.” § 921.0026(2)(j), Fla. Stat. (2019).
This provision is not a blanket authorization to consider remorse in
all circumstances, but instead only expressly authorizes a court to
depart from the minimum sentence if a defendant has shown
remorse. Remorse and lack of remorse, however, are shown
differently. As we observed in Pope, “[u]nfortunately, remorse is an
- 42 -
active emotion and its absence, therefore, can be measured or
inferred only from negative evidence.” 441 So. 2d at 1078.
Moreover, it does not necessarily follow that a factor the Legislature
intended for consideration in downward departures should be
considered when sentencing within the range. We may not read
more into the statute than is apparent from the plain text.
Accordingly, this provision does not authorize consideration of lack
of remorse when sentencing within the statutory range.
Second, even if the CPC authorized a court to consider that a
defendant has maintained his innocence throughout proceedings, it
would run afoul of the Florida Constitution. As explained above, we
have recognized a constitutional right to maintain innocence and to
not have the exercise of that right used to a defendant’s detriment.
Even with legislative authorization, we are not permitted to violate
rights the people of Florida have sought to protect through
constitutional amendment. See Coleman v. State ex rel. Race, 159
So. 504, 507 (Fla. 1935) (“The Legislature is the creature of the
Constitution and can never be superior in powers to the will of the
people as written by them in the Constitution.”).
- 43 -
The majority states that the trial judge did not need to
articulate any reason for imposing the maximum sentence. See
majority op. at 12. However, the trial judge expressly articulated
the reason in this case. A plain reading of the sentencing transcript
shows that the trial judge relied on Davis’ claim of innocence. In
his allocution, Davis maintained that he was innocent and that his
conviction was based on conspiratorial actions by the police and
deficient legal representation. The trial judge then admonished
Davis for failing to take responsibility and sentenced him to the
statutory maximum because he had failed to take responsibility.
The trial judge improperly considered Davis’ exercise of his
constitutional right to maintain his innocence at sentencing under
this Court’s precedent, thereby violating article I, section 9 of the
Florida Constitution.
III. CONCLUSION
For the above reasons, I would answer the rephrased certified
question in the affirmative, quash the First District’s decision, and
hold that a trial court violates a defendant’s constitutional rights to
due process and against self-incrimination where it considers that
- 44 -
he has maintained his innocence at sentencing and penalizes him
for that fact.
I respectfully dissent.
LABARGA, J., concurs.
LABARGA, J., dissenting.
I wholeheartedly concur with Justice Polston’s dissent and
could not disagree more strongly with the majority’s interpretation,
which penalizes defendants who maintain their innocence
throughout their trial and sentencing hearing. Curiously, the
majority reached its broad interpretation although the text of
chapter 921, Florida Statutes, does not expressly permit the
consideration of a defendant’s lack of remorse. Nor should it, for
reasons well explained in Justice Polston’s dissent.
I, also, am unpersuaded by the majority’s attempt to
distinguish Davis’s noncapital case from capital cases where this
Court has long held that the lack of remorse is not an appropriate
sentencing consideration.
Indeed, I find that Florida’s capital cases provide important
context here, and one needs to look no further than the thirty
exonerations from Florida’s death row—the most of any state in our
- 45 -
nation. Death Penalty Information Center,
https://deathpenaltyinfo.org/state-and-federal-info/state-by-
state/florida (last visited Oct. 4, 2021). A defendant’s adherence to
a claim of innocence is not always borne of a stubborn refusal to
admit the truth. Sometimes, people convicted by juries are actually
innocent.
Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance
First District – Case No. 1D17-165
(Leon County)
Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant
Public Defender, Second Judicial Circuit, Tallahassee, Florida,
for Petitioner
Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief,
and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee,
Florida,
for Respondent
- 46 -