Davis v. State
| Decision Date | 22 October 2014 |
| Docket Number | No. 4D13–0815.,4D13–0815. |
| Citation | 149 So.3d 1158 |
| Parties | Johnathan Kenneth Ray DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach.
Pamela Jo Bondi, Attorney General, Tallahassee and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
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 resentencing 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 constitutionally 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) (...
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Davis v. State
...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."); Whitm......
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Alfonso-Roche v. State
...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 vindi......
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Rankin v. State
...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 firs......
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Rankin v. State
...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 attemp......