Williams v. State

• Decision Date: 22 May 2015
• Docket Number: No. 2D12–6172.,2D12–6172.
• Citation: 164 So.3d 739
• Parties: Jonathan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

164 So.3d 739

Jonathan WILLIAMS, Appellant

v.STATE of Florida, Appellee.

No. 2D12–6172.

District Court of Appeal of Florida, Second District.

May 22, 2015.

Tanya M. Dugree of the Law Office of Tanya M. Dugree, P.A., Tampa, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appellee.

Opinion

LaROSE, Judge.

Jonathan Williams appeals his judgments and sentences for sexual battery with a deadly weapon, as charged, and robbery with a weapon, a lesser included offense of robbery with a firearm. The trial court sentenced Mr. Williams to life in prison on the sexual battery charge, followed by thirty years in prison for the robbery. We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A). The trial court imposed the consecutive sentences on the impermissible basis that Mr. Williams failed to show remorse and advanced an incredible defense. We affirm the judgments without further discussion but reverse for resentencing before a new judge.¹

Mr. Williams' criminal punishment code scoresheet called for a minimum allowable prison sentence of 174.9 months (14.575 years) up to a maximum prison sentence of life. In rejecting Mr. Williams' request for the minimum allowable prison sentence, the trial court expressly noted the overwhelming evidence against Mr. Williams and his implausible defense. The trial court stated, “[T]hen you stand before this court and say in the face of the evidence which is overwhelming that you're not guilty, you have absolutely no remorse whatsoever. [ ] And that is more of an impact on this court's reasoning for the sentence that I'm about to impose than any other reason.”

When a sentencing court expressly considers the improper factors of a defendant's assertions of innocence and refusal to admit guilt, the truthfulness of his testimony, or the failure to show remorse, fundamental error and a denial of due process occur. See Gage v. State, 147 So.3d 1020, 1022 (Fla. 2d DCA 2014) (reiterating that trial court's reliance on impermissible sentencing factors in deciding to impose statutory maximum sentence for battery and sexual battery denied defendant due process and was fundamental error; impermissible factors include lack of remorse, assertions of innocence, failure to accept responsibility, and alleged untruthfulness at trial); Johnson v. State, 120 So.3d 629, 631–32 (Fla. 2d DCA 2013) (finding trial counsel ineffective for failing to object to trial court's improper consideration at sentencing of defendant's claims of innocence, his refusal to admit guilt, and the truthfulness of his testimony; remanding for new sentencing hearing before a different judge); Diaz v. State, 106 So.3d 515, 516 (Fla. 2d DCA 2013) (holding that trial court was not permitted to consider truthfulness of defendant's guilt phase testimony as sentencing factor); Smith v. State, 62 So.3d 698, 699–700 (Fla. 2d DCA 2011) (express consideration of such improper factors in sentencing denies due process and constitutes fundamental error requiring reversal and resentencing before a different judge); Brown v. State, 27 So.3d 181, 182–83 (Fla. 2d DCA 2010) (reversing sentences for sentencing before a different judge when original judge expressly relied on lack of remorse, thus violating defendant's due process rights); Hannum v. State, 13 So.3d 132, 135–36 (Fla. 2d DCA 2009) (finding...