Third District Court of Appeal
State of Florida
Opinion filed December 19, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1794
Lower Tribunal No. 14-27483
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Manuel Chiong-Cortes,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Martin Zilber,
Judge.
Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant
Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant
Attorney General, for appellee.
Before EMAS, FERNANDEZ, and LOGUE, JJ.
LOGUE, J.
Manuel Chiong-Cortes appeals his conviction of burglary of an unoccupied
conveyance and petit theft as well as his sentence as a habitual offender to eight
years in prison followed by two years of probation. We affirm the conviction
without further comment, but reverse the sentence and remand for resentencing.
At the end of the sentencing hearing, the trial court stated: “I’ll tell you, Mr.
Chiong-Cortes, I’ve heard a lot of excuses from you and I have seen the pattern of
criminal conduct for close to 30 years. And the one thing I haven’t heard is any
remorse, just excuses.” The trial court later said: “And that is really the biggest
concern here.”
These comments indicating the trial judge considered Appellant’s lack of
remorse in fashioning the sentence constitute reversible error. As we have
previously explained:
Although a defendant’s expression of remorse and
acceptance of responsibility are appropriate factors for
the court to consider in mitigation of a sentence, a lack of
remorse, the failure to accept responsibility, or the
exercise of one’s right to remain silent at sentencing may
not be considered by the trial court in fashioning the
appropriate sentence.
Green v. State,
84 So. 3d 1169, 1171 (Fla. 3d DCA 2012). See Mentor v. State,
44
So. 3d 195, 196 (Fla. 3d DCA 2010) (“A review of the sentencing hearing
indicates that the trial judge impermissibly considered Mentor’s protestation of
innocence and lack of remorse.”); A.S. v. State,
667 So. 2d 994, 995-96 (Fla. 3d
2
DCA 1996) (reversing disposition in juvenile case where trial court’s comments
indicated reliance on child’s protestation of innocence).
Here, even though Chiong-Cortes made an extended presentation to request
mitigation, the trial court did not expressly limit his comments regarding
Appellant’s lack of remorse to its rejection of the request for mitigation. In light of
the trial court’s own statements, we are compelled to conclude that Appellant’s
lack of remorse was one of the factors considered in entering the sentence. See
Soto v. State,
874 So. 2d 1215, 1217 (Fla. 3d DCA 2004).
Accordingly, we reverse the sentence and remand for a new sentencing
hearing. As we have in the past, in an abundance of caution, we direct the new
sentencing hearing be conducted by a different circuit court judge. T.R. v. State,
26
So. 3d 80, 83 (Fla. 3d DCA 2010). The new judge has the discretion to enter any
legal sentence. See Price v. State,
838 So. 2d 587, 588-89 (Fla. 3d DCA 2003);
State v. Swider,
799 So. 2d 388, 390-91 (Fla. 4th DCA 2001); Palmer v. State,
182
So. 2d 625, 626 (Fla. 4th DCA 1966).
Conviction affirmed; sentence reversed; case remanded.
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