Alvin Davis v. State of Florida

Supreme Court of Florida
____________

No. SC19-716
____________

ALVIN DAVIS,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.

December 2, 2021

CANADY, C.J.

In this case, we consider whether a trial court’s consideration

of failure to take responsibility during a sentencing proceeding

necessarily violates a defendant’s due process rights. We have for

review the decision of the First District Court of Appeal in Davis v.

State, 268 So. 3d 958, 968-69 (Fla. 1st DCA 2019), in which the

district court certified the following question to be of great public

importance:

WHEN, IF EVER, MUST AN APPELLATE COURT
REVERSE A SENTENCE BASED ON THE TRIAL
COURT’S CONSIDERATION OF “REMORSE,” “FAILURE
TO TAKE RESPONSIBILITY,” OR THE LIKE?
We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

I. BACKGROUND

The facts as set forth by the First District are as follows:

A jury convicted Davis of possessing a firearm as a
convicted felon. According to trial testimony, a teenager
was driving a car with Davis as a passenger. Officers
stopped the car and found drugs, drug paraphernalia,
and a gun. The teenage driver testified that he did not
know a gun was in the car until right before the traffic
stop, when Davis pulled out the gun, wrapped it in an
orange shirt, and stuffed it under the seat.
The teen’s testimony was essential, and the defense
suggested it was also untrue. . . . The jury convicted.
Davis moved for a new trial. After a hearing, the
court denied the motion, and the case proceeded to
sentencing. The presentence investigation report noted
Davis’s “extensive criminal history,” which included
“numerous violent offenses.” It also concluded that Davis
“appears to have a history of gang related activity” and
“apparently continues to be a threat to the safety of the
community.” The PSI [(presentence investigation)] report
recommended the maximum sentence.[N.1]

[N.1] A PSI’s purpose is to provide information
to help the court impose an appropriate
sentence. See Fla. R. Crim P. 3.712(a). . . .

At the sentencing hearing, Davis declared he was
innocent. He insisted that the gun was not his, that the
jury convicted him without sufficient evidence, and that
his counsel performed inadequately. After Davis spoke,
the court pronounced sentence. In doing so, the court
recounted Davis’s significant criminal history and told
Davis “you still fail to take any responsibility for your
actions.” The court concluded that, “considering your
history here, your failure to take any responsibility, the

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nature of the crime, the fact that it involves a firearm, the
Court will sentence you to 15 years . . . , which is the
statutory maximum.”

Davis, 268 So. 3d at 961-62.

Davis appealed, and the First District heard his appeal en

banc. Receding from its own precedent, the First District concluded

that “lack of remorse and refusal to accept responsibility can be

valid sentencing considerations when sentencing within the

statutory range.” Id. at 961.

In reaching this conclusion, the First District explained that

“[t]he commonsense approach of considering a defendant’s

remorse—or willingness to take responsibility—fits with the

Legislature’s command that each sentence be not only

commensurate with the severity of the offense but also fashioned in

light of ‘the circumstances surrounding’ it.” Id. at 963 (quoting

§ 921.002(1)(c), Fla. Stat. (2017)). The district court noted the

United States Supreme Court’s recognition that “ ‘possession of the

fullest information possible concerning the defendant’s life and

characteristics’ is ‘[h]ighly relevant—if not essential’ to a judge’s

selection of an appropriate sentence,” id. (quoting Williams v. New

York, 337 U.S. 241, 247 (1949)), and that Florida courts have

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considered a variety of factors when sentencing a defendant,

including financial resources, employment status, family

obligations, and overall reputation in the community, id. at 964

(citing Noel v. State, 191 So. 3d 370, 379 (Fla. 2016); Imbert v.

State, 154 So. 3d 1174, 1175 (Fla. 4th DCA 2015)). The First

District further explained that “[a] defendant’s remorse or

willingness to accept responsibility comprises part of the whole

picture,” and “speak[s] to a defendant’s character and to the

defendant’s potential for rehabilitation,” which is important because

a sentencing judge is obligated to consider a convicted defendant’s

potential for rehabilitation, or lack thereof, in fashioning a sentence.

Id. (citing Simmons v. State, 419 So. 2d 316, 320 (Fla. 1982)).

The First District addressed several counterarguments to its

change in precedent. First, it discussed the “view that judges may

rely on remorse to reduce a sentence but may not rely on a lack of

remorse to increase a sentence.” Id. at 965. While the First District

acknowledged that this approach was taken by this Court in the

capital case Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983), it

distinguished the instant case, because noncapital sentencing does

not consider aggravating factors to justify a higher sentence as is

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required in capital sentencing. Davis, 268 So. 3d at 965. In this

case, the First District noted, the trial court was authorized to

impose the maximum sentence based only on the fact of the

conviction and without further findings, which are necessary to

impose an aggravated sentence of death in a capital case. Id.

The First District explained that “if [it] held that Davis’s refusal

to take responsibility could not increase his sentence but could

justify not lowering his sentence, [it] would have to figure out which

of those happened.” Id. at 966. But this could prove difficult since

it is unclear whether a particular sentence reflects “an aggravated

sentence or an unmitigated sentence.” Id. The court noted that

none of the minority opinions written in this case “doubts the

legality of considering remorse or acceptance of responsibility to

reduce (or not reduce) a sentence.” Id. 1 The court took issue with

this position, explaining,

1. Indeed, consideration of remorse to reduce a sentence is
specifically authorized in section 921.0026(2)(j), Florida Statutes
(2017), which permits a downward departure from the lowest
permissible sentence in cases where “[t]he offense was committed in
an unsophisticated manner and was an isolated incident for which
the defendant has shown remorse.”

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This further supports our conclusion that these
considerations are, in fact, valid sentencing
considerations. It should go without saying that no up-
versus-down distinction would be an issue with truly
impermissible sentencing factors. With religion, for
example, we would never say a judge could lighten a
sentence for defendants who disavowed Catholicism, so
long as the judge did not enhance sentences for those
who embraced Catholicism. We would instead say—quite
emphatically—that a defendant’s religious faith must not
play any part in the sentence. In other words, we would
say improper sentencing factors should not be factors in
sentencings—up or down.

Id. (citation omitted). To put it another way, the court concluded

that if acceptance of responsibility is a permissible sentencing

consideration to reduce a sentence, then it is simply a proper

sentencing consideration, regardless of its purpose.

Finally, turning to this Court’s decision in Holton v. State, 573

So. 2d 284, 292 (Fla. 1990), another capital case, the First District

rejected the argument that Holton’s prohibition against using pleas

of not guilty against defendants is comparable to the voluntary

allocution in this case. Davis, 268 So. 3d at 967. The First District

reasoned that “when a defendant forgoes permissible benefits of

pleading guilty (such as a lenient sentence), it does not necessarily

follow that his not-guilty plea was unconstitutionally ‘used against

him.’ ” Id. at 966-67. The court continued, “To the extent Davis

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had to choose between maintaining his innocence at sentencing or

seeking a more favorable sentence, he was in no different situation

than defendants facing plea offers every single day.” Id. at 967.

The First District then distinguished cases of true judicial

vindictiveness, which would clearly be violative of due process

rights. Id. at 967-68. But, the court reasoned, withholding

leniency, as the trial court here did, is not equivalent to punishing a

defendant. Id.

Concluding that there was no constitutional violation, the

First District held “that a trial judge does not violate a defendant’s

due process rights by merely considering the defendant’s lack of

remorse or refusal to accept responsibility.” Id. at 961. The First

District thus affirmed Davis’s conviction and sentence but certified

the aforementioned question to be one of great public importance.

Id. at 968-69.

We accepted jurisdiction to answer the certified question, but

because the district court did not pass upon the entirety of the

question as framed, we first rephrase it based on the specific

circumstances presented by this case:

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DOES A TRIAL COURT, WHEN IMPOSING A SENTENCE
ON A DEFENDANT WHO HAS VOLUNTARILY CHOSEN
TO ALLOCUTE AND MAINTAIN HIS INNOCENCE AT THE
SENTENCING HEARING, VIOLATE THE DEFENDANT’S
DUE PROCESS RIGHTS BY CONSIDERING THE
DEFENDANT’S FAILURE TO TAKE RESPONSIBILITY FOR
HIS ACTIONS?2

II. ANALYSIS

Davis contends that consideration by a trial court at

sentencing of a defendant’s failure to take responsibility for his or

her actions violates due process “because it infringes on the

defendant’s right to testify and not incriminate himself.” Initial Br.

of Pet. at 13. We disagree. In support of his position, Davis relies

on this Court’s opinion in Holton, a capital case, in which this Court

stated that “[a] trial court violates due process by using a

protestation of innocence against a defendant.” 573 So. 2d at 292.

He relies on another capital case, Pope, which states that “lack of

remorse should have no place in the consideration of aggravating

2. Our rephrasing of the question should not be understood
to suggest that we view lack of remorse as materially different than
failure to take responsibility. Lack of remorse and failure to take
responsibility ordinarily are simply different ways of characterizing
the same attitude manifested by a defendant.

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factors.” 441 So. 2d at 1078. But his reliance on these capital

cases is misplaced.

In Pope, “[t]he trial court, in finding the murder especially

heinous atrocious or cruel commented that ‘the Defendant has [not]

shown any remorse, having elected to steadfastly deny his guilt.’ ”

Id. at 1077. The standard jury instruction explaining the heinous,

atrocious, or cruel capital aggravator in effect at the time included a

definition of “cruel” that “tended to focus attention on the mindset

of the murderer—his consciencelessness or pitilessness.” Id. Thus,

we explained that “lack of remorse came to be considered relevant

to the determination under this aggravating factor.” Id. Before

ultimately concluding that any error was harmless because “the

applicability of this aggravating factor was proved beyond a

reasonable doubt without regard to Pope’s remorse or lack thereof,”

id. at 1078, this Court wrote that “[t]o equate a defendant’s not-

guilty plea with lack of remorse which may be considered in

weighing an aggravating circumstance in support of imposition of

the death penalty would in effect punish the defendant for

exercising rights of due process,” id. at 1077. The Court went on to

conclude that “any consideration of defendant’s remorse” is

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“extraneous to the question of whether the murder of which he was

convicted was especially heinous, atrocious or cruel.” Id. at 1078.

The Court reasoned that “[e]vents occurring after death, no matter

how revealing of depravity and cruelty, are not relevant to the

atrocity of the homicide.” Id.

Having resolved the issue on that basis, the Court went on to

observe:

Unfortunately, remorse is an active emotion and its
absence, therefore, can be measured or inferred only
from negative evidence. This invites the sort of mistake
which occurred in the case now before us—inferring lack
of remorse from the exercise of constitutional rights.
This sort of mistake may, in an extreme case, raise a
question as to whether the defendant has been denied
some measure of due process, thus mandating a remand
for reconsideration of the sentence. For these reasons,
we hold that henceforth lack of remorse should have no
place in the consideration of aggravating factors. Any
convincing evidence of remorse may properly be
considered in mitigation of the sentence, but absence of
remorse should not be weighed either as an aggravating
factor nor as an enhancement of an aggravating factor.

Id.

But Pope is inapplicable here. This case is not a capital case

requiring consideration of aggravating factors. In capital cases,

only statutory aggravating factors may be considered, and a

statutory aggravating factor is required to be proven beyond a

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reasonable doubt before a sentence of death may be imposed. See

§ 921.141(2)(b)2., Fla. Stat. (2020) (“If the jury . . . [u]nanimously

finds at least one aggravating factor, the defendant is eligible for a

sentence of death . . . .”); State v. Poole, 297 So. 3d 487, 491 (Fla.

2020) (upholding this Court’s prior ruling that “a jury must

unanimously find the existence of a statutory aggravating

circumstance beyond a reasonable doubt”), cert. denied, 141 S. Ct.

1051 (2021). In a noncapital case, the statutory maximum

sentence is a legal sentence by virtue of the conviction alone. See §

921.002(1)(g), Fla. Stat. (2017) (“The trial court judge may impose a

sentence up to and including the statutory maximum for any

offense . . . .”). As the First District correctly observed:

In Davis’s case, . . . the judge had statutory authority to
impose a sentence of up to fifteen years. § 775.082(1)(d),
Fla. Stat. He could do so with a remorseful defendant,
and he could do so with an unremorseful defendant. He
could do so with a defendant taking responsibility for his
crimes, and he could do so with a defendant unwilling to
take responsibility. The conviction alone was enough to
justify the sentence. No “aggravator” or additional
findings were necessary.

Davis, 268 So. 3d at 965. In other words, the Legislature

empowered the trial court to sentence Davis to fifteen years’

imprisonment whether or not he took responsibility for his actions,

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because it was the fact of his conviction that subjected him to a

sentence up to and including the statutory maximum. So the

statutory scheme applicable here, unlike the statute governing

aggravating circumstances in capital cases that was applied in

Pope, does not foreclose consideration in sentencing of the

defendant’s failure to accept responsibility.

In Holton, the trial court declined to apply the proposed

mitigating circumstance that the capacity of the defendant to

appreciate the criminality of his conduct or to conform his conduct

to the requirements of the law was substantially impaired. 573 So.

2d at 292. In finding that this mitigating circumstance was not

established, the trial court wrote, “The defendant testified he was

addicted to drugs but still maintained his innocence of these

offenses. This factor would not apply in view of that sworn

testimony.” Id.

On appeal, this Court said that “[t]he 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,” and that “entering a plea of not guilty does not

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preclude consideration by the sentencer of matters relevant to

mitigation.” Id. In sum, this Court concluded that the trial court

had used the defendant’s not guilty plea as an improper basis for

rejecting a mitigating circumstance that was established.

Ultimately, this Court concluded that any error was harmless

because Holton’s drug abuse was considered mitigating under a

different mitigating circumstance. Id. at 298. Holton’s broad,

unqualified statement that “using a protestation of innocence

against a defendant” “violates due process,” id. at 292, goes far

beyond the facts presented and is unnecessary to the Court’s

decision. It constitutes dicta that we expressly disapprove—dicta

that cannot be reconciled with the Supreme Court’s decision in

United States v. Grayson, 438 U.S. 41 (1978), which we discuss

below.

The facts of this case are entirely distinguishable from Holton.

This again is not a capital case that involves a weighing of

aggravating factors and mitigating circumstances in order to

determine a sentence. “Judges in noncapital cases . . . do not

consider ‘aggravators’ and ‘mitigators’ in the same sense that

capital sentencers do.” Davis, 268 So. 3d at 965.

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If a judge gives an unremorseful defendant a longer
sentence than he might have given a remorseful
defendant, we often will never know whether the
resulting differential flowed from an “aggravated”
sentence or an “unmitigated” sentence. There is no
baseline sentence, no upward or downward departure—
just a sentence that involved a judge’s consideration (in
some fashion) of the offense and the defendant’s
characteristics.

Id. at 966.3

And the fact that Davis maintained his innocence and the trial

court observed that he failed to take responsibility for his actions

did not result in the trial court “preclud[ing] consideration” of other

relevant sentencing factors, particularly because Davis did not offer

any. During his allocution, Davis discussed only his innocence. He

3. This line of analysis helps explain why our decision in State
v. Mischler, 488 So. 2d 523 (Fla. 1986), has no persuasive force
here. In Mischler, we cited Pope for the proposition “that lack of
remorse cannot be inferred from the exercise of constitutional
rights.” 488 So. 2d at 526. Although Mischler involved a noncapital
case, it nonetheless arose in a context dissimilar to the context
presented by this case. Mischler addressed the issue of what
constituted “clear and convincing reasons” for an upward departure
sentence under the guidelines sentencing scheme then in effect. Id.
at 525. The trial court found the lack of remorse to be a ground for
an upward departure sentence based on statements of the
defendant in the presentence report that protested her innocence
and criticized the criminal justice system. Id. at 526. We
determined that such “facts do not support a finding of lack of
remorse” under the applicable “clear and convincing” standard. Id.
Of course, no such standard is applicable here.

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offered no other reasons to the court why a sentence less than the

maximum should be imposed. The trial judge therefore had no

opportunity to “preclude consideration” of other matters offered by

Davis that might have been relevant to the sentence. Indeed, Davis

specifically told the trial court that he was not asking for leniency

because he did nothing wrong. (“If I did anything wrong, or said

anything that’s inappropriate, I would apologize. Right now, and I

ask -- I would be asking for leniency, but I did nothing wrong. I am

not guilty of the charge that I’m accused of. I am innocent.”)

Instead, he accused multiple parties of misconduct, blamed the

driver of the car, the police, his lawyer, and the trial court,

repeatedly attempted to explain his interpretations of the law to the

judge, and asked the judge to consider evidence that was not

introduced at the trial.

The lowest permissible sentence under the Criminal

Punishment Code, in accordance with Davis’s sentencing

scoresheet, was 118.125 months (approximately nine years and ten

months) and the statutory maximum sentence was fifteen years.

The State requested that the court impose the maximum sentence

because of Davis’s numerous previous convictions and violent

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history, while defense counsel urged the court to impose the lowest

permissible sentence per the scoresheet. The law therefore provided

the trial judge with a range from approximately ten to fifteen years

to which he could sentence Davis. In fashioning the sentence, the

trial court considered that Davis had “an extensive violent history

here and a lot of it involves a firearm,” including, “a second degree

murder, attempted second degree murder, attempted armed

robbery with a firearm, armed robbery with a firearm, aggravated

assault with a deadly weapon, discharging a firearm on school

property, aggravated battery with a deadly weapon, battery on a law

enforcement officer, felony battery.” The court categorized this as “a

violent, unfortunate history that we’re dealing with” and noted that

the offense for which Davis was to be sentenced also involved a

firearm.

The trial judge had numerous valid reasons for imposing the

maximum sentence here, but, as stated previously, he did not need

to articulate any reason. The judge was statutorily authorized to

impose a sentence up to fifteen years based solely on the fact of the

conviction, regardless of any sentencing considerations and

whether or not Davis took responsibility for his actions. “The

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conviction alone was enough to justify the sentence. No ‘aggravator’

or additional findings were necessary.” Davis, 268 So. 3d at 965-

66. The Supreme Court has long recognized that due process

permits “a sentencing judge [to] exercise a wide discretion in the

sources and types of evidence used to assist him in determining the

kind and extent of punishment to be imposed within limits fixed by

law.” Williams, 337 U.S. at 246. The Court has “never [called into]

doubt[] the authority of a judge to exercise broad discretion in

imposing a sentence within a statutory range.” United States v.

Booker, 543 U.S. 220, 233 (2005). Whether a defendant says

nothing at sentencing or takes full responsibility and is able to

show that he is a pillar of the community, a judge retains the

discretion to impose the maximum sentence.

Further, while a defendant does have the right to maintain his

innocence by pleading not guilty and going to trial, and the right to

remain silent, Davis chose to voluntarily allocute at his sentencing

and thus waived his right to remain silent. And because Davis

waived the right to maintain his silence, the trial court did not

violate Davis’s right to due process by considering the words that

Davis voluntarily offered in imposing a sentence. “Just as a jury

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weighs a defendant’s testimony once he waives his Fifth

Amendment privilege at trial, a judge may consider a defendant’s

freely offered allocution . . . during sentencing.” United States v.

Stanley, 739 F.3d 633, 652 (11th Cir. 2014). This is true even if

those words are detrimental to the defendant.

Nor was Davis forced to choose between allocution and

maintenance of his innocence; he certainly could have allocuted

without voicing his disagreement with the verdict, blaming the

driver, the police, his lawyer, and the trial court for his conviction,

and attempting to explain his personal interpretations of the law to

the judge. He could have asked for leniency without admitting his

guilt. He could have provided the judge with reasons to impose a

sentence less than the maximum besides his claimed innocence.

But he instead chose to make a lengthy statement claiming

innocence, denying responsibility, and placing blame for his

conviction on the alleged misconduct of others. The trial court was

under no obligation to ignore such statements and did not err in

considering those statements in imposing the legal sentence here.

“[O]ur system need not treat as equals an unrepentant convict and

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one who shows remorse.” United States v. McClain, 2 F.3d 205, 207

(7th Cir. 1993).4

In Grayson, 438 U.S. at 44, the Court considered the propriety

of the following statement by a sentencing judge considering the

defendant’s testimony: “[I]t is my view that your defense was a

complete fabrication without the slightest merit whatsoever. I feel it

is proper for me to consider that fact in the sentencing, and I will do

so.” (Emphasis removed.) In rejecting the defendant’s due process

argument—including a claim that allowing a sentencing judge to

consider the falsity of testimony given by the defendant would chill

the defendant’s right to testify—the Court stated that “[a]

defendant’s truthfulness or mendacity while testifying on his own

behalf, almost without exception, has been deemed probative of his

attitudes toward society and prospects for rehabilitation and hence

relevant to sentencing.” 438 U.S. at 50. The Court thus concluded

that “the defendant’s readiness to lie under oath—especially when,

4. We agree with the First District that the record here does
not remotely suggest that the trial court punished the defendant for
exercising his constitutional right to go to trial. Davis, 260 So. 2d
at 968. And we need not speculate here about what facts would
need to be proven to demonstrate a due process violation of that
nature.

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as here, the trial court finds the lie to be flagrant—may be deemed

probative of his prospects for rehabilitation.” Id. at 52.

According to the Court, “The right guaranteed by law to a

defendant is narrowly the right to testify truthfully in accordance

with the oath—unless we are to say that the oath is mere ritual

without meaning.” Id. at 54. Because there is no “protected right”

to lie to the court, any potential “chilling effect on a defendant’s

decision to testify falsely” “is entirely permissible.” Id. The Court

therefore “reaffirm[ed] the authority of a sentencing judge to

evaluate carefully a defendant’s testimony on the stand,

determine—with a consciousness of the frailty of human

judgment—whether that testimony contained willful and material

falsehoods, and, if so, assess in light of all the other knowledge

gained about the defendant the meaning of that conduct with

respect to his prospects for rehabilitation and restoration to a

useful place in society.” Id. at 55.

We see no reason to disagree with the teachings of Grayson.

Nor do we see any reason to deny the relevance of those teachings

to the issue presented by this case. Just as in Grayson, the

sentencing judge here was entitled to consider testimony that

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indicated the defendant’s unwillingness to accept the truth and to

take responsibility for his own conduct.

III. CONCLUSION

We hold that when a defendant voluntarily chooses to allocute

at a sentencing hearing, the sentencing court is permitted to

consider the defendant’s freely offered statements, including those

indicating a failure to accept responsibility. Thus, we answer the

rephrased question in the negative and approve the result in the

decision on review.

It is so ordered.

LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.
GROSSHANS, J., concurs with an opinion.
POLSTON, J., dissents with an opinion, in which LABARGA, J.,
concurs.
LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

GROSSHANS, J., concurring.

I agree with the majority’s holding that due process and the

right against compelled self-incrimination do not preclude a

sentencing court from considering a defendant’s refusal to take

responsibility for his or her criminal conduct when the defendant

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freely speaks at sentencing. As a general matter, personal

constitutional rights may be waived. See In re Shambow’s Estate,

15 So. 2d 837, 837 (Fla. 1943) (“It is fundamental that

constitutional rights which are personal may be waived.”). For

example, a defendant may waive the right to trial by jury, the right

to counsel, the right to confront witnesses, and the protection

against unreasonable searches and seizures. See United States v.

Mezzanatto, 513 U.S. 196, 201 (1995); United States v. Garey, 540

F.3d 1253, 1263 (11th Cir. 2008); United States v. Basinski, 226

F.3d 829, 834 (7th Cir. 2000).

The right against compelled self-incrimination is no different.

See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966) (recognizing

that a defendant in custody may waive the right to remain silent);

Miller v. State, 208 So. 3d 178, 181 (Fla. 1st DCA 2016) (“When the

defendant waives the privilege against self-incrimination and freely

speaks to police, the State is free to treat the defendant’s testimony

regarding those statements like that of any other witness.” (citing

Ivey v. State, 586 So. 2d 1230, 1234 (Fla. 1st DCA 1991))); Allen v.

State, 322 So. 3d 589, 602 (Fla. 2021) (noting that a defendant may

waive the right to remain silent at trial, stating: “[W]hen a defendant

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chooses to testify in a criminal case, the Fifth Amendment does not

allow him to refuse to answer related questions on cross-

examination.”) (alteration in original) (quoting Kansas v. Cheever,

571 U.S. 87, 94 (2013))); State v. Heath, 343 So. 2d 13, 15-16 (Fla.

1977) (holding that an agreement to accept the terms of probation

waives the Fifth Amendment privilege against self-incrimination

with respect to information required to be disclosed pursuant to

certain probationary terms).

Here, Davis spoke voluntarily at sentencing, thereby waiving

his constitutional right against compelled self-incrimination. Once

he waived this right, there could be no basis for claiming that the

trial court violated due process for considering his statements in

determining a proper sentence.

And Davis’s uncoerced words were relevant to the severity of

his criminal punishment. Specifically, through his words, Davis

manifested a refusal to take responsibility for his criminal conduct,

a matter bearing on his amenability to rehabilitation. Thus, the

sentencing court properly considered Davis’s refusal to accept

responsibility for his criminal conduct in imposing the maximum

sentence.

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Reaching a different conclusion, the dissent 5 looks to the

Florida Constitution, which provides, “No person shall be deprived

of life, liberty or property without due process of law . . . or be

compelled in any criminal matter to be a witness against oneself.”

Art. I, § 9, Fla. Const. According to the dissent, this provision

affords a defendant the constitutional right to maintain his or her

innocence at sentencing, regardless of whether he or she freely

speaks. Dissenting op. at 29, 33-43.

However, nothing in the text of article I, section 9 confers such

an unwaivable right or forbids consideration of Davis’s voluntary

statements. Aside from this lack of textual support, the dissent’s

position is also inconsistent with federal case law holding that the

self-incrimination clause of the United States Constitution—nearly

identical to its Florida counterpart—does not bar a sentencing court

from considering a defendant’s failure to take responsibility or lack

of remorse. See United States v. Stanley, 739 F.3d 633, 652 (11th

Cir. 2014) (“Harris’s argument confuses the nature of the Fifth

Amendment privilege. During sentencing, a court ‘may not weigh

5. For purposes of this opinion, I refer to the dissent authored
by Justice Polston, joined by Justice Labarga.

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the exercise of [Fifth Amendment] rights against the defendant.’

But a court may take into account a defendant’s freely offered

statements indicating a lack of remorse. Just as a jury weighs a

defendant’s testimony once he waives his Fifth Amendment privilege

at trial, a judge may consider a defendant’s freely offered allocution

regarding remorse during sentencing.” (alteration in original)

(citations omitted) (quoting United States v. Rodriguez, 959 F.2d

193, 197 (11th Cir. 1992))); accord United States v. McKee, 752 F.

App’x. 462, 466 (9th Cir. 2018); United States v. Keskes, 703 F.3d

1078, 1090-91 (7th Cir. 2013); United States v. Mitchell, 681 F.3d

867, 885 (6th Cir. 2012); United States v. Douglas, 569 F.3d 523,

527-28 (5th Cir. 2009); United States v. Abu Ali, 410 F. App’x. 673,

681 (4th Cir. 2011); United States v. Bines, 309 F. App’x. 580, 582

(3d Cir. 2009); United States v. Wallace, 755 F. App’x. 63, 65–66 (2d

Cir. 2018); United States v. Cruzado-Laureano, 527 F.3d 231, 236-

37 (1st Cir. 2008).

Not relying on the text of the Florida Constitution or federal

case law, the dissent instead finds support in this Court’s

jurisprudence—mainly Pope v. State, 441 So. 2d 1073 (Fla. 1983),

and Holton v. State, 573 So. 2d 284 (Fla. 1990). I agree with the

- 25 -
majority that Pope and Holton are distinguishable. Both were

capital cases governed by a statute not applicable to sentencing in

the noncapital context. Under that statute, refusal to take

responsibility or show remorse is not relevant to any of the

aggravating factors for consideration in sentencing a capital

defendant. § 921.141(6), Fla. Stat (2020) (providing an exclusive

list of aggravating factors). In contrast, a sentencing court in a

noncapital case may consider a broader set of facts when deciding

whether to impose the harshest sentence within the statutory

range.6

Though Holton is distinguishable, statements in that case

arguably support the dissent. In Holton, this Court stated, “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.” 573 So. 2d at 292. Though it is dicta, the district

6. Some of the district court decisions cited by the dissent
also involved a defendant’s silence at sentencing or a defendant’s
not-guilty plea. E.g., Green v. State, 84 So. 3d 1169, 1172 (Fla. 3d
DCA 2012). Unlike the defendants in those cases, Davis made
voluntary statements at sentencing. Thus, those factually
dissimilar cases are unpersuasive here.

- 26 -
courts have relied on this statement in evaluating sentencing

challenges in noncapital cases. See, e.g., Pierre v. State, 259 So. 3d

859, 861 (Fla. 4th DCA 2018). Consequently, I agree with the

majority’s express disapproval of the Holton dicta as inconsistent

with today’s decision. Majority op. at 13.

Finally, one statement of the majority warrants a brief

discussion. The majority states, “[T]he Legislature empowered the

trial court to sentence Davis to fifteen years’ imprisonment whether

or not he took responsibility for his actions, because it was the fact

of his conviction that subjected him to a sentence up to and

including the statutory maximum.” Majority op. at 12. I do not

interpret this statement as meaning that a sentencing court can

properly consider any and all facts so long as the sentence

ultimately falls within the statutory range. Thus, in my view,

today’s decision would not excuse a court’s consideration of an

unconstitutional factor, such as race or religion, in imposing a

sentence up to and including the statutory maximum. Accordingly,

if a court considers an unconstitutional factor in imposing the

sentence, that sentence would still be unlawful even if it was within

the statutory range. But here, as we have concluded, the

- 27 -
sentencing court considered no such unconstitutional factor and

was fully authorized to sentence Davis to the statutory maximum

based on his conviction.

Thus, for the reasons given above, I join the majority opinion

in its entirety.

POLSTON, J., dissenting.

I dissent from the majority’s decision holding that a trial court

can punish a defendant for his lack of remorse during a sentencing

proceeding. This result is inconsistent with our precedent

interpreting article I, section 9 of the Florida Constitution, the

consensus among the district courts of appeal, and has no basis in

our statutory sentencing scheme. Showing remorse is admitting

you did something wrong—an admission of guilt. And increasing a

defendant’s sentence based on the failure to show remorse is

punishing a defendant for failing to admit guilt. Punishing someone

unless they confess guilt of a crime is a violation of due process and

the right against self-incrimination. Accordingly, I would hold that

a trial court violates a defendant’s constitutional right to due

process and right against self-incrimination where it penalizes a

defendant for the failure to admit guilt.

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I. BACKGROUND

Alvin Davis was convicted of possession of a firearm as a

convicted felon. Davis v. State, 268 So. 3d 958, 961 (Fla. 1st DCA

2019). The statutory maximum for this offense was 15 years, but

Davis’ sentencing scoresheet calculated the minimum sentence to

be approximately 10 years. At his sentencing hearing, Davis elected

to speak on his behalf and made the following statement:

Your Honor, I’d like to thank you for letting me talk
on the record. I do not understand why I was found
guilty of possessing a gun I never touched, neither did I
know was in that car. It’s clear by the evidence that I am
only a scapegoat for the driver of that vehicle. The
bullets that was in that glove compartment would have
proven the driver’s DNA on it. So, the State, nor my
attorney refused to have it tested because it would have
proved the driver was lying.
Constructive possession means I had knowledge
and control over that gun. I did not, and nothing can
prove that. The police officer clearly on the record
coerced and manipulated the driver into saying that it
was my gun. They recorded it as saying even to him that
he could smoke weed and not be arrested. They also told
him, a juvenile, that if he was going to smoke weed he
should buy a better quality of weed. It is all on the
transcript and you read it and seen it firsthand in the
MAVRIC.[7]
How could this injust (phonetic) take place in this
courtroom without my lawyer taking part? Evidence in

7. MAVRIC is the in-car camera system used to record audio
and video of traffic stops.

- 29 -
the law of construction possession proves me right. I
understand I cannot get any justice here in this
courtroom. I trust my life and liberty in the hands of the
First DCA Court who knows firsthand the illegal action
taking place in this Leon County courtroom assistance,
most of these appointed court lawyers.
If I did anything wrong, or said anything that’s
inappropriate, I would apologize. Right now, and I ask--I
would be asking for leniency, but I did nothing wrong. I
am not guilty of the charge that I’m accused of. I am
innocent. And the facts, evidence and the law proves me
right. I will allow the First DCA to correct this injust
(phonetic).
I have no knowledge of a firearm. I got charged with
possession of a firearm. That means it came off my
possession. They never found me with any firearm on my
person. I knew nothing about the MAVRIC transcript
that you read, Your Honor, but I know you studied law
for many years, I know you looked at that MAVRIC
transcript. I know you read it, just out of curiosity. I
know you know law from the front to the back. I know
you seen the injust (phonetic). I know you seen him
coerce with him. I know you read it.
Your Honor, I feel like I’m auctioned off to prison,
my freedom, and nothing that I went to trial for, nobody,
not even the evidence, not even the firearm had my
fingerprints or my DNA on it. I came in front of you,
Your Honor. On October 27th, I told you she refused to
have the evidence suppressed, the ammunition. She
refused. She coerced with the state Attorney about the
MAVRIC. They both agreed to not to even talk about the
MAVRIC. I knew nothing about it. That wasn’t my
agreement. I wanted to show the MAVRIC. I wanted to
talk about the MAVRIC. That was my defense.
It clearly in the MAVRIC you see him coercing with
him. They’re talking to a juvenile. If he’s on weed and
marijuana at the time of the stop, he can’t give a
statement without his parent present. He can’t make a
statement at all because he’s on drugs and alcohol. He

- 30 -
admitted to them. They told him they will show him
leniency if he will make a statement saying that was my
firearm they will let him go home. He drove away. I went
to jail. I’m the only one went to jail. By law, he was in
possession of that car. He’s responsible for everything in
that car. He’s a primary driver of that vehicle. Thank
you, Your Honor. I ask will you consider--I know you
read the MAVRIC transcript. I know.

The trial court concluded the proceedings by sentencing Davis

to 15 years, the statutory maximum, and addressed Davis:

THE COURT: All right. Thank you. All right. Mr.
Davis, quite frankly we’re not here to retry the facts of the
case. I heard the evidence. It was put before a jury and
they found beyond a reasonable doubt that you are guilty
of the charged offense. And from my review of the
evidence, and from what I heard in the courtroom and
the testimony and the evidence provided, quite frankly I
think they got it right.
And I can see here by your score sheet, you have an
extensive violent history here and a lot of it involves a
firearm. We have a second degree murder, attempted
second degree murder, attempted armed robbery with a
firearm, armed robbery with a firearm, aggravated
assault with a deadly weapon, discharging a firearm on
school property, aggravated battery with a deadly
weapon, battery on a law enforcement officer, felony
battery. Just a violent, unfortunate history that we’re
dealing with. And a lot of it involves a firearm. And now
we have a new offense that involves a firearm again.
And quite frankly, you know, they found you with
the firearm before any harm could come of it, because
who knows what would have happened–
THE DEFENDANT: They found me with the
firearm?
THE COURT: --if there was an opportunity to use
that firearm in the future. And so that is one of the good

- 31 -
things that came out of it was that there wasn’t that
opportunity.
You still fail to take any responsibility for your
actions. And considering your history here, your failure
to take any responsibility, the nature of the crime, the
fact that it involves a firearm, the Court will sentence you
to 15 years in the Department of Corrections, which is
the statutory maximum.

On appeal, the First District Court of Appeal, sitting en banc,

receded from its own precedent to hold that “lack of remorse and

refusal to accept responsibility can be valid sentencing

considerations when sentencing within the statutory range.” Davis,

268 So. 3d at 961. Davis now asks us to quash the decision of the

First District.

II. ANALYSIS

Article I, section 9 of the Florida Constitution provides: “No

person shall be deprived of life, liberty or property without due

process of law, or be twice put in jeopardy for the same offense, or

be compelled in any criminal matter to be a witness against oneself.”

Art. I, § 9, Fla. Const. (emphasis added). Until now, this Court has

interpreted this provision to protect a defendant’s right to maintain

his innocence at sentencing without fear of retribution. Beginning

with Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983), we held that

- 32 -
a defendant’s lack of remorse did not bear on the consideration of

aggravating factors in capital sentencing. 8 The defendant in that

case “steadfastly den[ied] his guilt,” which the trial court interpreted

as a lack of remorse and used as a fact to establish the existence of

the heinous, atrocious, and cruel aggravating circumstance. Id. at

1077. But we distinguished the defendant’s denial of guilt from the

defendant’s statements about the crime, explaining:

Unfortunately, remorse is an active emotion and its
absence, therefore, can be measured or inferred only
from negative evidence. This invites the sort of mistake
which occurred in the case now before us—inferring lack
of remorse from the exercise of constitutional rights.
This sort of mistake may, in an extreme case, raise a
question as to whether the defendant has been denied
some measure of due process, thus mandating a remand
for reconsideration of the sentence. For these reasons,
we hold that henceforth lack of remorse should have no
place in the consideration of aggravating factors. Any
convincing evidence of remorse may properly be
considered in mitigation of the sentence, but absence of
remorse should not be weighed either as an aggravating
factor nor as an enhancement of an aggravating factor.

Id. at 1078.

8. Prior to Pope, we recognized that lack of remorse was an
improper aggravating circumstance in capital sentencing in Jackson
v. Wainwright, 421 So. 2d 1385, 1387 (Fla. 1982), and McCampbell
v. State, 421 So. 2d 1072, 1075 (Fla. 1982), which both rejected
lack of remorse as a statutory aggravator in and of itself.

- 33 -
In State v. Mischler, 488 So. 2d 523, 526 (Fla. 1986), we held

that, in noncapital sentencing, lack of remorse inferred from an

exercise of constitutional rights or an assertion of innocence was

not a clear and convincing reason to support an upward departure

sentence. As we explained:

The trial court’s finding that Mischler was not remorseful
is based entirely on her statement in the presentence
report that she did not commit the alleged theft, that the
employer was the culpable party, and that she lost at
trial because “he [the victim] had money and those with
money rule the world.” These statements cannot be
termed as lack of remorse. Rather, Mischler was merely
maintaining her innocence and voicing her opinion on
the workings of the criminal justice system in America.
In Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983),
we held that lack of remorse cannot be inferred from the
exercise of constitutional rights. Similarly, in Hubler v.
State, 458 So. 2d 350 (Fla. 1st DCA 1984), the court held
that lack of remorse cannot be proven solely by the fact
that a defendant maintains his innocence. Thus, we hold
that lack of remorse to support a departure sentence
cannot be inferred from either the mere exercise of a
constitutional right or a continuing assertion of
innocence.

Mischler, 488 So. 2d at 526.

And in Holton v. State, 573 So. 2d 284, 292 (Fla. 1990), we

expressed similar concerns while holding that protestations of

innocence do not preclude a court from considering relevant

statutory mitigators in capital sentencing. The defendant in Holton

- 34 -
asked the court to consider an impaired capacity statutory

mitigator, but the trial court did not apply this mitigator because it

found that the defendant had demonstrated his capacity to

appreciate the criminality of his actions by maintaining his

innocence. Id. at 292-93. This Court found error and observed:

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.

Id. at 292. Significantly, in Holton, we concluded that where a

defendant pleads not guilty and maintains his innocence at

sentencing, article I, section 9 of the Florida Constitution prohibits

the trial court from using that fact against him. See id.

To summarize, we have recognized that lack of remorse may

not be inferred from a defendant’s exercise of constitutional rights

and that the Florida Constitution protects a defendant’s right to

- 35 -
maintain his innocence at sentencing. The majority attempts to

distinguish and isolate our precedent in Pope and Holton as

applicable only in the capital context due to the consideration of

aggravating factors in capital cases. See majority op. at 7-11.

However, we have applied these principles in capital as well as

noncapital cases. Our precedent in Holton, as well as Pope and

Mischler, dictates that the protection against self-incrimination

enumerated in article I, section 9 of the Florida Constitution

extends to protect a defendant from being penalized for maintaining

his innocence throughout his proceedings. The majority has not

receded from this precedent, and I see no reason to depart from it.

Further, the district courts consistently apply the rule that a

trial court violates the defendant’s due process rights when it

considers lack of remorse in sentencing where a defendant has

maintained innocence throughout proceedings. See, e.g., Jackson

v. State, 39 So. 3d 427, 428 (Fla. 1st DCA 2010) (listing cases that

show as “established law” that a “statement made by the trial court

[that] can reasonably be read only as conditioning the sentence, at

least in part, upon [the defendant]’s claim of innocence” violates

due process), receded from by Davis, 268 So. 3d at 965; Whitmore v.

- 36 -
State, 27 So. 3d 168, 171 (Fla. 4th DCA 2010) (listing a “long,

unwavering line of cases” that hold that “a trial court violates due

process by using a protestation of innocence against a defendant at

sentencing”); Jiles v. State, 18 So. 3d 1216, 1216-17 (Fla. 5th DCA

2009) (reversing when the trial court noted at sentencing that the

defendant “maintained his innocence at trial and during

sentencing”); Bracero v. State, 10 So. 3d 664, 665-66 (Fla. 2d DCA

2009) (finding a due process violation when the defendant spoke at

sentencing about his claims of innocence, alleging his conviction

was motivated by conspiracy, and the trial court explicitly said the

sentence was imposed in part due to his lack of remorse); see also

Corbitt v. State, 220 So. 3d 446, 450-54 (Fla. 5th DCA 2016);

Donaldson v. State, 16 So. 3d 314, 314 (Fla. 4th DCA 2009); Soto v.

State, 874 So. 2d 1215, 1217 (Fla. 3d DCA 2004).

The district courts rightly recognize that not only is this rule

compelled by our precedent, but it is also vital to the exercise of a

defendant’s constitutional rights. See, e.g., Catledge v. State, 255

So. 3d 937, 940 (Fla. 1st DCA 2018) (“The stated reason for the

general rule . . . is to ensure that a defendant is not unfairly

punished for his plea of not guilty and the exercise of his

- 37 -
constitutional rights to remain silent and to proceed to a jury trial.”

(quoting Corbitt, 220 So. 3d at 450-51)), receded from by Davis, 268

So. 3d at 965; Allen v. State, 211 So. 3d 48, 54 (Fla. 4th DCA 2017)

(“Allowing a sentencing court to penalize a defendant for not

admitting guilt after a conviction or adjudication would jeopardize

various rights attached to these post-trial processes and chill a

defendant’s right to remain silent.”); Green v. State, 84 So. 3d 1169,

1172 (Fla. 3d DCA 2012) (“When a defendant chooses to remain

silent at a sentencing hearing, and the trial court regards this

silence as a lack of remorse or a failure to accept responsibility, it

causes an impermissible chilling effect upon a defendant’s due

process rights, and cannot serve as a constitutionally permissible

sentencing consideration.”); Gilchrist v. State, 938 So. 2d 654, 657-

58 (Fla. 4th DCA 2006) (“When a court predicates the length of a

sentence on the defendant’s failure to show any inclination toward

repentance, the court violates the defendant’s right not to be

required to incriminate himself.”). I concur and find that our

precedent compels a different result than the one reached by the

majority and the First District below.

- 38 -
Here, in sentencing, the trial court expressly considered Davis’

refusal to take responsibility: “You still fail to take any responsibility

for your actions. And considering your history here, your failure to

take any responsibility, the nature of the crime, the fact that it

involves a firearm, the Court will sentence you to 15 years in the

Department of Corrections, which is the statutory maximum.”

(Emphasis added.) Davis’ due process rights and right against self-

incrimination were violated by being punished at sentencing for not

admitting his guilt. The plain language of article I, section 9

supports this: “No person shall be deprived of life, liberty or

property without due process of law, or be twice put in jeopardy for

the same offense, or be compelled in any criminal matter to be a

witness against oneself.” (Emphasis added). According to Justice

Grosshans’ concurring opinion, because Davis voluntarily spoke, he

waived his rights to due process and against self-incrimination.

Concurring op. at 24-25. However, simply because Davis chose to

speak and maintain his innocence does not mean he should be

punished for the failure to admit guilt. Accepting responsibility is

an admission of guilt and punishing someone for the failure to

admit guilt is a violation of due process and the right against self-

- 39 -
incrimination. If law enforcement cannot coerce an admission of

guilt from a defendant without violating due process, see Wilson v.

State, 242 So. 3d 484, 491 (Fla. 2d DCA 2018) (explaining that the

Florida Constitution prohibits the admission of governmentally

compelled statements), a court cannot likewise coerce an admission

of guilt from a defendant.

The judicial process, which is grounded on constitutional due

process, protects a defendant’s right to maintain innocence and

does not punish a defendant for doing so. Moreover, this due

process protection extends beyond the defendant being found guilty

at the trial court level. Indeed, as Justice Labarga notes in his

separate dissenting opinion, our judicial proceedings include

appeals from trials that are occasionally overturned and lead to the

defendant ultimately being released. A defendant’s right to

maintain his or her innocence remains paramount in these

proceedings.

The majority relies on United States v. Grayson, 438 U.S. 41

(1978), to support its assertion that “the sentencing judge here was

entitled to consider testimony that indicated the defendant’s

unwillingness to accept the truth and to take responsibility for his

- 40 -
own conduct.” Majority op. at 21. However, I disagree that

Grayson is relevant to the issue presented in this case. In Grayson,

the trial court ruled that “it is my view that your defense was a

complete fabrication without the slightest merit whatsoever. I feel it

is proper for me to consider that fact in the sentencing, and I will do

so.” 438 U.S. at 44 (emphasis in original). No such ruling was

made by the trial court in this case. Instead, the trial court

improperly considered lack of remorse in its sentencing. There is a

distinct difference between the consideration of the defendant’s

false testimony during trial based on a fabricated defense and the

consideration of the defendant’s lack of remorse when the

defendant maintains his innocence at sentencing. The federal

circuit court cases cited by Justice Grosshans’ concurring opinion

are distinguishable. Concurring op. at 25-26. The federal

sentencing framework differs from Florida’s framework in numerous

ways, including the express authorization to consider all relevant

information at sentencing and a downward adjustment provision

that provides guidance on how to demonstrate remorse. See 18

U.S.C. § 3661 (2018) (“No limitation shall be placed on the

information concerning the background, character, and conduct of

- 41 -
a person convicted of an offense which a court of the United States

may receive and consider for the purpose of imposing an

appropriate sentence.”); U.S. Sentencing Guidelines Manual § 3E1.1

(U.S. Sentencing Comm’n 2018) (explicitly permitting a court to

decrease a defendant’s sentence “if the defendant clearly

demonstrates acceptance of responsibility for his offense”).

The First District found that the Criminal Punishment Code

(CPC) authorizes a consideration of lack of remorse at sentencing,

but this assertion is incorrect for two reasons. First, the CPC does

not explicitly authorize consideration of lack of remorse when

sentencing within the range. Chapter 921, Florida Statutes,

authorizes a trial court to impose a sentence lower than the

minimum sentence if “[t]he offense was committed in an

unsophisticated manner and was an isolated incident for which the

defendant has shown remorse.” § 921.0026(2)(j), Fla. Stat. (2019).

This provision is not a blanket authorization to consider remorse in

all circumstances, but instead only expressly authorizes a court to

depart from the minimum sentence if a defendant has shown

remorse. Remorse and lack of remorse, however, are shown

differently. As we observed in Pope, “[u]nfortunately, remorse is an

- 42 -
active emotion and its absence, therefore, can be measured or

inferred only from negative evidence.” 441 So. 2d at 1078.

Moreover, it does not necessarily follow that a factor the Legislature

intended for consideration in downward departures should be

considered when sentencing within the range. We may not read

more into the statute than is apparent from the plain text.

Accordingly, this provision does not authorize consideration of lack

of remorse when sentencing within the statutory range.

Second, even if the CPC authorized a court to consider that a

defendant has maintained his innocence throughout proceedings, it

would run afoul of the Florida Constitution. As explained above, we

have recognized a constitutional right to maintain innocence and to

not have the exercise of that right used to a defendant’s detriment.

Even with legislative authorization, we are not permitted to violate

rights the people of Florida have sought to protect through

constitutional amendment. See Coleman v. State ex rel. Race, 159

So. 504, 507 (Fla. 1935) (“The Legislature is the creature of the

Constitution and can never be superior in powers to the will of the

people as written by them in the Constitution.”).

- 43 -
The majority states that the trial judge did not need to

articulate any reason for imposing the maximum sentence. See

majority op. at 12. However, the trial judge expressly articulated

the reason in this case. A plain reading of the sentencing transcript

shows that the trial judge relied on Davis’ claim of innocence. In

his allocution, Davis maintained that he was innocent and that his

conviction was based on conspiratorial actions by the police and

deficient legal representation. The trial judge then admonished

Davis for failing to take responsibility and sentenced him to the

statutory maximum because he had failed to take responsibility.

The trial judge improperly considered Davis’ exercise of his

constitutional right to maintain his innocence at sentencing under

this Court’s precedent, thereby violating article I, section 9 of the

Florida Constitution.

III. CONCLUSION

For the above reasons, I would answer the rephrased certified

question in the affirmative, quash the First District’s decision, and

hold that a trial court violates a defendant’s constitutional rights to

due process and against self-incrimination where it considers that

- 44 -
he has maintained his innocence at sentencing and penalizes him

for that fact.

I respectfully dissent.

LABARGA, J., concurs.

LABARGA, J., dissenting.

I wholeheartedly concur with Justice Polston’s dissent and

could not disagree more strongly with the majority’s interpretation,

which penalizes defendants who maintain their innocence

throughout their trial and sentencing hearing. Curiously, the

majority reached its broad interpretation although the text of

chapter 921, Florida Statutes, does not expressly permit the

consideration of a defendant’s lack of remorse. Nor should it, for

reasons well explained in Justice Polston’s dissent.

I, also, am unpersuaded by the majority’s attempt to

distinguish Davis’s noncapital case from capital cases where this

Court has long held that the lack of remorse is not an appropriate

sentencing consideration.

Indeed, I find that Florida’s capital cases provide important

context here, and one needs to look no further than the thirty

exonerations from Florida’s death row—the most of any state in our

- 45 -
nation. Death Penalty Information Center,

https://deathpenaltyinfo.org/state-and-federal-info/state-by-

state/florida (last visited Oct. 4, 2021). A defendant’s adherence to

a claim of innocence is not always borne of a stubborn refusal to

admit the truth. Sometimes, people convicted by juries are actually

innocent.

Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance

First District – Case No. 1D17-165

(Leon County)

Jessica J. Yeary, Public Defender, and Lori A. Willner, Assistant
Public Defender, Second Judicial Circuit, Tallahassee, Florida,

for Petitioner

Ashley Moody, Attorney General, Trisha Meggs Pate, Bureau Chief,
and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee,
Florida,

for Respondent

- 46 -