Jackson v. State Of Fla.

• Decision Date: 25 June 2010
• Docket Number: No. 1D09-3735.,1D09-3735.
• Citation: 39 So.3d 427
• Parties: Ronald JACKSON, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

39 So.3d 427

Ronald JACKSON, Appellant,v.STATE of Florida, Appellee.

No. 1D09-3735.

District Court of Appeal of Florida First District.

June 25, 2010.

Nancy A. Daniels, Public Defender; and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General; and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Ronald Jackson appeals a conviction and sentence for armed robbery while actually possessing a firearm.We affirm without comment the trial court's rulings made during the guilt phase of the trial.We vacate the 25-year prison sentence, however, because the trial court's remarks immediately before pronouncing the sentence are reasonably construed as affirmatively punishing Jackson for failing to show any remorse or regret for any of his actions, thereby denying due process and fundamentally erring.

At sentencing, the trial court made several remarks, including the following:

Mr. Jackson, you've been convicted by a jury of your peers, since you show no remorse or regret for any of your actions I'm going to sentence you to 25 years Florida State Prison....

The evidence in this case, although sufficient to support a conviction, was not overwhelming, relying largely upon a photo lineup identification.Appellant made no admission of complicity in the crime charged.The statement made by the trial court can reasonably be read only as conditioning the sentence, at least in part, upon appellant's claim of innocence, in violation of established law.See

Nawaz v. State,28 So.3d 122, 124-25(Fla. 1st DCA2010)(finding fundamental error where trial court based sentence partly on an impermissible ground);Whitmore v. State,27 So.3d 168, 169-72(Fla. 4th DCA2010)(concluding that trial court's reliance upon defendant's continued protestation of innocence at sentencing, which the judge viewed as a lack of remorse and denial of responsibility, was an impermissible basis for imposing the maximum sentence, denied due process, and constituted fundamental error);Jiles v. State,18 So.3d 1216(Fla. 5th DCA2009)(reversing sentence and remanding for resentencing before a different judge because original judge improperly based sentence upon defendant's denying his involvement and failing to accept responsibility);Hannum v. State,13 So.3d 132, 134-36(Fla. 2d DCA2009)(concluding that trial court's improper consideration of defendant's maintaining his innocence at trial and at sentencing denied due process and constituted fundamental error, compelling reversal of sentence and remand for resentencing, even though the original prison sentence fell within the scoresheet range);Bracero v....