Dumas v. State
| Decision Date | 08 February 2013 |
| Docket Number | No. 1D12–1275.,1D12–1275. |
| Citation | 134 So.3d 1048 |
| Parties | Demond DUMAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Nancy A. Daniels, Public Defender, and Luke Newman, Special Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
Appellant, Demond Dumas, challenges his conviction and sentence on two grounds, only one of which has merit. Appellant argues that the trial court committed fundamental error by considering whether he expressed remorse when imposing his sentence. We agree and reverse.
A lack of remorse or a failure to accept responsibility may not be considered by the trial court when fashioning an appropriate sentence. Green v. State, 84 So.3d 1169, 1171 (Fla. 3d DCA 2012). In this case, the trial court specifically referenced Appellant's lack of remorse and his continued protestation of innocence when it announced Appellant's sentence. The court's statement can reasonably be read only as conditioning the sentence, at least in part, on Appellant's lack of remorse and claim of innocence, which is a violation of Appellant's due process rights. See Jackson v. State, 39 So.3d 427, 428 (Fla. 1st DCA 2010) (); Nawaz v. State, 28 So.3d 122, 124–25 (Fla. 1st DCA 2010) (); Whitmore v. State, 27 So.3d 168, 169–72 (Fla. 4th DCA 2010) (). Appellant is entitled to resentencing before a different judge. Jackson, 39 So.3d at 428.
We AFFIRM the conviction, VACATE the sentence, and REMAND with instructions to resentence Appellant before a different judge.
REVERSED and REMANDED.
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...This Court has held that fundamental error occurs when a trial court bases a sentence on impermissible grounds. Dumas v. State, 134 So.3d 1048, 1048 (Fla. 1st DCA 2013). "Although an appellate court generally may not review a sentence that is within statutory limits under the Criminal Punis......
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