Green v. State
Decision Date | 04 April 2012 |
Docket Number | No. 3D10–3094.,3D10–3094. |
Parties | Alexander GREEN, Appellant, v. The STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
Before RAMIREZ, LAGOA and EMAS, JJ.
Appellant, Alexander Green, appeals his conviction and sentence for manslaughter. We affirm, without further discussion, the judgment of conviction. However, Appellant's argument regarding sentencing has merit and, for the reasons which follow, we vacate the sentence and remand the cause for a new sentencing hearing before a different judge.
At the sentencing hearing, the victim's parents made a statement to the Court. Thereafter, the following took place:
(Emphasis added).
It is reasonably evident that the trial court, in fashioning the sentence, considered Appellant's silence and, by his silence, the failure to express remorse. This was improper. Although a defendant's expression of remorse and acceptance of responsibility are appropriate factors for the court to consider in mitigation of a sentence,2 a lack of remorse, the failure to accept responsibility, or the exercise of one's right to remain silent at sentencing may not be considered by the trial court in fashioning the appropriate sentence.3 Mentor v. State, 44 So.3d 195 (Fla. 3d DCA 2010) ; Johnson v. State, 948 So.2d 1014 (Fla. 3d DCA 2007) ; Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004) ; A.S. v. State, 667 So.2d 994 (Fla. 3d DCA 1996) ; Whitmore v. State, 27 So.3d 168 (Fla. 4th DCA 2010) ; Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009) ; Ritter v. State, 885 So.2d 413 (Fla. 1st DCA 2004) ; K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001). Resentencing is required even if this was but one of several factors the court considered in imposing its sentence. Soto, 874 So.2d at 1217; A.S., 667 So.2d at 996.
The due process clause of the Fifth Amendment prohibits a court from punishing a defendant for exercising a constitutional right, such as the right to remain silent. As the Florida Supreme Court explained broadly in Holton v. State, 573 So.2d 284, 292 (Fla.1990) :
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.
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. A defendant would face a Hobson's choice between his right to remain silent (thus maintaining his innocence and preserving, as a practical matter, his appellate rights) and his right to allocution at sentencing.4 A defendant who chooses silence at sentencing risks the possibility of...
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