Ritter v. State, 1D04-1731.
| Decision Date | 15 October 2004 |
| Docket Number | No. 1D04-1731.,1D04-1731. |
| Citation | 885 So.2d 413 |
| Parties | James RITTER, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
James Ritter, petitioner, pro se.
Charles J. Crist, Jr., Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for respondent.
By timely petition, James Ritter asserts that he was denied the effective assistance of counsel on appeal as a consequence of counsel's failure to address a sentencing issue apparent from the face of the record. We agree and grant the petition.
The transcript of Ritter's sentencing hearing reflects that his sentencing guidelines scoresheet yielded a sentencing range of 81 to 135 months imprisonment. Defense counsel argued for a sentence at the bottom of the guidelines range with a portion thereof suspended, while the state requested that Ritter be sentenced to a term of 96 months imprisonment, to be followed by 5 years of sex offender probation. In thereafter announcing sentence, the trial judge stated the following:
Ritter asserts that it is clear from these comments that the trial judge considered and gave weight to the fact that he continued to maintain his innocence and failed to show remorse, and on that basis imposed a sentence of incarceration in excess of that sought by the state. We find Ritter's argument in this regard to be meritorious. While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. See, e.g., Lyons v. State, 730 So.2d 833 (Fla. 4th DCA 1999); Peters v. State, 485 So.2d 30 (Fla. 3d DCA 1986); Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984). Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true. See K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001). Reliance on these impermissible factors violates the defendant's due process rights. See Holton v. State, 573 So.2d 284 (Fla.1990); Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004); K.N.M. v. State, supra.
The state argues that appellate ...
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