A.S. v. State, 94-3022

• Decision Date: 14 February 1996
• Docket Number: No. 94-3022,94-3022
• Citation: 667 So.2d 994
• Parties: 21 Fla. L. Weekly D396 A.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 994

667 So.2d 994

21 Fla. L. Weekly D396

A.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.

No. 94-3022.

District Court of Appeal of Florida Third District.

Feb. 14, 1996.

An appeal from the Circuit Court for Monroe County, Richard Payne, Judge.

Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Keith S. Kromash, Assistant Attorney General, for appellee.

Before JORGENSON, GERSTEN and GREEN, JJ.

GREEN, Judge.

A.S., a juvenile, appeals his adjudication of delinquency and resulting commitment to a juvenile facility. A.S. argues that he is entitled to a new disposition hearing before a different judge because the trial court impermissibly relied upon the fact that he had maintained his innocence to the charged offense throughout the proceeding below. We agree and reverse.

A.S. was charged with the commission of an aggravated battery with a deadly weapon upon another juvenile. A.S. entered a plea of denial and an adjudicatory hearing was conducted by the court below. Although there were conflicting accounts among the various witnesses about whether A.S. was the actual perpetrator, A.S. was ultimately found and adjudicated by the court below to be delinquent as charged. The court immediately ordered Health and Rehabilitative Services ("H.R.S.") to hold a commitment conference and make its recommendation to the court pursuant to section 39.052(4), Florida Statutes (1993) at the later scheduled disposition hearing.

At the disposition hearing, H.R.S. recommended to the court that A.S. not be committed ¹, receive a withhold of adjudication and be ordered to perform 20 hours of community service. The State, on the other hand, urged the court to adjudicate A.S. delinquent and commit A.S. to a level 6 ² facility, in large part, because A.S. had never shown remorse or accepted responsibility for the incident at any time during the proceeding below. ³ When the court gave A.S. an opportunity to speak on his own behalf, A.S. stated that he was sorry that the victim had been cut but he steadfastly maintained his innocence as the perpetrator. The trial court adjudicated A.S. delinquent, committed him to a level 4 juvenile group treatment home to be followed by 50 hours of community service, and reserved jurisdiction on the issue of restitution to the victim. In so doing, the trial court made it abundantly clear in the record that its disposition of this case was significantly influenced by A.S.'s continued protestation of innocence to the charge. ⁴

"The law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)." City of Daytona Beach v. Del Percio, 476 So.2d 197, 205 (Fla.1985) (quoting Gillman v. State, 373 So.2d 935, 938 (Fla. 2d DCA 1979), quashed on other grounds, 390 So.2d 62 (Fla.1980)); Hubler v. State, 458 So.2d 350, 353 (Fla. 1st DCA 1984); Fraley v. State, 426 So.2d 983, 985 (Fla. 3d DCA 1983), appeal after remand sub nom. Frazier v. State 467 So.2d 447 (Fla. 3d DCA), rev. dismissed, 475 So.2d 694 (Fla.1985); McEachern v. State, 388 So.2d 244, 248 (Fla. 5th DCA 1980). As explained by the Florida Supreme Court in Holton v. State, 573 So.2d 284, 292 (Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991):

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.

This constitutional right not to be unfairly penalized for the assertion of innocence and demand for trial is also enjoyed by juveniles in their criminal adjudicatory proceedings before the court. R.A.B. v. State, 399 So.2d 16 (Fla. 3d DCA 1981) (holding improper the decision to adjudicate a juvenile delinquent based upon his asserted fifth amendment right to remain silent and right to plead not guilty).

Most assuredly, as the State maintains, A.S.'s protestation of innocence throughout the proceeding below was not the sole factor in the court's decision to commit him to a juvenile facility. Nevertheless, we find that A.S.'s choice of plea should never have been a factor. See City of Daytona Beach, 476 So.2d at 205 ("[T]he defendant's exercise of the right to trial cannot be a factor in the sentencing decision."); see also Gillman, 373 So.2d at 939 (finding reversible error because "appellant's choice of plea should not have played any part in the determination of his sentence"). Because it is abundantly clear to us that it did, we conclude that A.S. is entitled to a new disposition proceeding. We therefore reverse and vacate the order of disposition and as stated in Hubler: " '[I]n an abundance of caution' to insure completely fair proceedings, we also 'think it best ... that the appellant be resentenced by another judge to be assigned by the chief judge of the circuit.' " 458 So.2d at 354 (quoting Gallucci v. State, 371 So.2d 148, 150 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1194 (Fla.1980)).

Reversed and remanded with instructions.

1 H.R.S.'s stated reasons for this recommendation were that although this was a serious offense, (1) A.S. had never been in any trouble with the law prior to this incident and "the juvenile justice system is not set up to commit children to a program on their first charge."; (2) A.S. would be negatively exposed at the commitment facility to other juveniles who have been in the juvenile system for a long...