Davis v. State, 1D17-0165

Citation268 So.3d 958
Decision Date25 April 2019
Docket NumberNo. 1D17-0165,1D17-0165
Parties Alvin DAVIS, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)


Winsor, J.

As the Florida Supreme Court explained in its 1990 Holton v. State decision, "[a] defendant has the right to maintain his or her innocence and have a trial by jury." 573 So.2d 284, 292 (Fla. 1990). And "because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt," a defendant's decision to not plead guilty "cannot be used against him or her during any stage of the proceedings." Id. In short, the court concluded, "[a] trial court violates due process by using a protestation of innocence against a defendant." Id. (citing U.S. Const. amend. V ; Art. I, § 22, Fla. Const.).

Starting from these fundamental propositions, Florida's district courts have developed new, different rules. "Over time, case law has expanded the rule in Holton and applied it in cases which indicate that it is generally improper for the sentencing court to consider the defendant's lack of remorse." Rankin v. State , 174 So.3d 1092, 1096-97 (Fla. 4th DCA 2015) (marks omitted) (quoting Peters v. State , 128 So.3d 832, 847 (Fla. 4th DCA 2013) ). For its part, this court has explicitly held that "[a] lack of remorse or a failure to accept responsibility may not be considered by the trial court when fashioning an appropriate sentence." Dumas v. State , 134 So.3d 1048, 1048 (Fla. 1st DCA 2013) (emphasis added) (citing Green v. State , 84 So.3d 1169, 1171 (Fla. 3d DCA 2012) (relying on Holton ) ); see also Wood v. State , 148 So.3d 557, 557 (Fla. 1st DCA 2014) ("Our precedents make clear that a sentence conditioned, even in part, on a defendant's lack of remorse and claim of innocence violates due process and warrants remand for resentencing before a new judge." (marks omitted) ); Jackson v. State , 39 So.3d 427, 428 (Fla. 1st DCA 2010) (reversing sentence after sentencing judge said "since you show no remorse or regret for any of your actions I'm going to sentence you to 25 years"); Ritter v. State , 885 So.2d 413, 414 (Fla. 1st DCA 2004) (holding that reliance on lack of remorse violates due process); K.Y.L. v. State , 685 So.2d 1380, 1381 (Fla. 1st DCA 1997) (citing Holton ) ("[L]ack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence."), disapproved of on other grounds by State v. J.P.C. , 731 So.2d 1255 (Fla. 1999). Decisions from other districts have said the same thing. See, e.g ., Chiong-Cortes v. State , 260 So.3d 1154, 1154 (Fla. 3d DCA 2018) ("[C]omments indicating the trial judge considered Appellant's lack of remorse in fashioning the sentence constitute reversible error."); Davis v. State, 149 So.3d 1158, 1160 (Fla. 4th DCA 2014) ("A trial court's consideration of a defendant's lack of remorse in imposing its sentence is fundamental error."); Whitmore v. State , 27 So.3d 168, 169 (Fla. 4th DCA 2010) ("[T]he trial court's reliance on these factors [lack of remorse and failure to accept responsibility] violated [defendant's] due process rights and constituted fundamental error."). But see St. Val v. State , 958 So.2d 1146, 1146 (Fla. 4th DCA 2007) ("We reject appellant's contention that a sentencing judge may never take a defendant's lack of remorse into consideration when imposing sentence.").

We granted en banc review to consider whether these cases state a correct rule of law, and we conclude they do not. 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.


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 defense theorized that officers conditioned the teen's release on his implicating Davis. The defense noted that although the teen told officers the drugs and paraphernalia were his, officers opted to cite him, not arrest him. In its rebuttal closing, the State referenced a dashcam video and argued that "if that audio had recorded at any point the officer saying, hey, if you point your finger at this guy, we'll give you a juvenile citation and let you go home-- ...." Defense counsel interrupted and objected to "burden shifting," and the trial court concluded the State's argument was improper because the parties stipulated to admitting the video without audio. The State, resuming its rebuttal argument, told the jury that "[i]f there had been some special deal cooked up, I think we would have heard about it." 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 report recommended the maximum sentence.1

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 nature of the crime, the fact that it involves a firearm, the Court will sentence you to 15 years ..., which is the statutory maximum."

The principal issue we now face is whether the court's observation that Davis "still fail[s] to take any responsibility for [his] actions" means the court violated Davis's due process rights.


Although we granted en banc review to consider the sentencing issue, Davis also argues that the court erred in denying his new-trial motion. We address this argument first because it would, if successful, moot the sentencing issue.

"A trial court's denial of a motion for a new trial is reviewed under an abuse of discretion standard. In order to demonstrate abuse, the nonprevailing party must establish that no reasonable person would take the view adopted by the trial court." Stephens v. State , 787 So.2d 747, 754 (Fla. 2001). Here, Davis argues that the prosecutor's comments were improper burden shifting, warranting a new trial. After a hearing, the trial court offered several cogent reasons for denying the new-trial motion. First, the court concluded that defense counsel opened the door, both by cross-examining the officer about the existence of an audio recording and by suggesting in closing that there was a deal for leniency with the teen driver. Second, the court found that the comment was brief, that counsel stopped almost immediately for a sidebar, and that the comment likely did not influence the jury. Third, the court concluded that any error would have been harmless because of, among other things, the fact that Davis's DNA was on the orange shirt in which the gun was wrapped.

We find no abuse of discretion in the trial court's order. We therefore affirm the conviction and turn now to the sentencing issue.


As federal and state courts have frequently said, "[i]t is well established that a sentencing judge may consider lack of remorse when imposing a sentence." United States v. Johnson , 903 F.2d 1084, 1090 (7th Cir. 1990) ; accord State v. Herrera , 164 Idaho 261, 429 P.3d 149, 168 (2018) ("A trial court does not err by considering a defendant's lack of remorse at sentencing ...."); People v. Mulero , 176 Ill.2d 444, 223 Ill.Dec. 893, 680 N.E.2d 1329, 1337 (1997) ("It is well settled that a defendant's remorse or lack thereof is a proper subject for consideration at sentencing.").2

In fact, Florida sentencing statutes explicitly authorize consideration of remorse and responsibility. A trial court may apply "[a] downward departure from the lowest permissible sentence" if the offense was an isolated incident done in an unsophisticated way and was one "for which the defendant has shown remorse." § 921.0026(1), (2)(j), Fla. Stat. (2018). Even before the Legislature enacted that provision, the Florida Supreme Court approved downward departures based on remorse. State v. Sachs , 526 So.2d 48, 51 (Fla. 1988) (including "remorse" among the "valid factors considered by the trial court"). The federal sentencing guidelines similarly consider "acceptance of responsibility" as a legitimate and appropriate factor. See, e.g ., United States Sentencing Guidelines Manual § 3E1.1(a) (U.S. Sentencing Comm'n 2018) ("If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels."); id. § 3E1.1(a) cmt. ("[A] defendant who clearly demonstrates acceptance of responsibility for his offense ... is appropriately given a lower offense level than a defendant who has not demonstrated acceptance of responsibility."). In short, courts and legislatures throughout the country—including the Florida Supreme Court and the Florida Legislature—have recognized that remorse can be a proper sentencing factor.

The commonsense approach of considering a defendant's remorse—or willingness...

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4 cases
  • Davis v. State
    • United States
    • Florida Supreme Court
    • December 2, 2021
    ...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 APPELL......
  • Anderson v. Sec'y Dep't of Corr.
    • United States
    • U.S. District Court — Northern District of Florida
    • August 30, 2023
    ...within the statutory range.” Davis v. State, 268 So.3d 958, 961 (Fla. 1st DCA 2019) (en banc), approved, 332 So.3d 970 (Fla. 2021). In Davis, the sentencing judge had “[Considering your history here, your failure to take any responsibility, the nature of the crime, the fact that it involves......
  • Bartley v. State
    • United States
    • Florida District Court of Appeals
    • September 10, 2020
    ...cost an innocent man his life. Even if the court did consider Bartley's lack of remorse, there was no error. In Davis v. State , 268 So. 3d 958 (Fla. 1st DCA 2019) (en banc), review granted No. SC19-716, 2019 WL 2427789 (Fla. June 11, 2019), this Court, sitting en banc, held that in non-cap......
  • Sibrun v. State
    • United States
    • Florida District Court of Appeals
    • September 30, 2020
    ...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 ......
1 books & journal articles
  • Judgment and sentence
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...an issue of great public importance and certified the following question for clarification by the Florida Supreme Court. Davis v. State, 268 So. 3d 958 (Fla. 1st DCA 2019) (question certified) Consecutive sentences impermissible under Florida’s 10-20-Life statute where the charges did not c......

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