Ryan v. State

• Decision Date: 26 October 2011
• Docket Number: No. 3D10–1709.,3D10–1709.
• Parties: Michael Patrick RYAN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

78 So.3d 14

Michael Patrick RYAN, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D10–1709.

District Court of Appeal of Florida, Third District.

Oct. 26, 2011.

An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge.Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.

Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

Affirmed.

EMAS, J., concurring in part and dissenting in part.

I join the majority in affirming without discussion the conviction. However, I dissent from the majority's affirmance of the sentence. I believe we should vacate the sentence and remand to the trial court for resentencing before a different judge. Where it is reasonably evident that the trial court, in determining the appropriate sentence, considered at least in part a defendant's lack of remorse (as opposed to a court's determination that a defendant's claim of remorse has not been established ¹), the sentence should be vacated and a

[78 So.3d 15]

new sentencing proceeding held before a different judge. See, e.g., Mentor v. State, 44 So.3d 195 (Fla. 3d DCA 2010); T.R. v. State, 26 So.3d 80 (Fla. 3d DCA 2010); Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004); A.S. v. State, 667 So.2d 994 (Fla. 3d DCA 1996); Brunson v. State, 492 So.2d 1155 (Fla. 3d DCA 1986); Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010); Holt v. State, 33 So.3d 811 (Fla. 4th DCA 2010); Whitmore v. State, 27 So.3d 168 (Fla. 4th DCA 2010); Jiles v. State, 18 So.3d 1216 (Fla. 5th DCA 2009); Hannum v. State, 13 So.3d 132 (Fla. 2d DCA 2009); K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001); K.Y.L. v. State, 685 So.2d 1380 (Fla. 1st DCA 1997), disapproved on other grounds, State v. J.P.C., 731 So.2d 1255, 1256 n. 1 (Fla.1999); Hubler v. State, 458 So.2d 350 (Fla. 1st DCA 1984).

It may well be that the sentence imposed by the trial court was a fair and proper sentence under the circumstances. However, if we are to maintain public confidence in the court system, we must be vigilant in ensuring not only actual fairness, but the appearance of fairness as well.

SHEPHERD, J., and SCHWARTZ, Senior Judge, concur.

--------

Notes:

^1. This is not a situation where a defendant acknowledged his guilt (or admitted the act but not the intent) and expressed remorse at sentencing in an effort to mitigate his culpability or seek a reduced...