Johnathan Kenneth Ray Davis v. State , 2014 Fla. App. LEXIS 17158 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
JOHNATHAN KENNETH RAY DAVIS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-0815
[October 22, 2014]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No.
12014595CF10A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach,
Pamela Jo Bondi, Attorney General, Tallahassee and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Davis appeals his convictions and sentence for three counts of
attempted first degree murder with a firearm. We affirm his convictions
without discussion, but vacate his sentence and remand for resentencing
before a different judge because the trial court improperly considered
Davis’s lack of remorse in sentencing him.
At the sentencing hearing, the State asked the court to sentence Davis
to the lowest permissible sentence, a twenty-five year mandatory minimum
to run concurrently on all cases. However, at the conclusion of the
hearing, the trial court stated:
THE COURT: I heard the evidence and I heard the jury speak.
I also heard the recommendation of your lawyer. I’ve heard
the recommendation by the state. I am going to give you as
much of a break as I can. What I didn’t hear was your
responsibility. What I didn’t hear was an apology to the family
of the victims and to the victims. What I didn’t hear was you
taking ownership of your actions and that bothers me.
(emphasis added). The trial court then sentenced Davis to concurrent
terms of thirty years in prison with a twenty-five year mandatory minimum
sentence and credit for time served.
On appeal, Davis argues that the trial court improperly considered his
lack of remorse as an aggravating factor in the sentencing decision. He
asserts that the trial court specifically referenced his lack of remorse when
it announced his sentence, and that he is therefore entitled to resentencing
before a different judge. We agree.
A defendant’s due process rights are violated where the trial court relies
on constitutionally impermissible factors in imposing a sentence. Norvil v.
State, 39 Fla. L. Weekly D520 (Fla. 4th DCA Mar. 12, 2014). It is well
established that “[w]hen 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.”
Gilchrist v. State, 938 So. 2d 654, 657-58 (Fla. 4th DCA 2006); see also
Donaldson v. State, 16 So. 3d 314 (Fla. 4th DCA 2009); Soto v. State, 874
So. 2d 1215 (Fla. 3rd DCA 2004) (stating that although defendant’s lack
of remorse and unwillingness to admit guilt were not the only factors in
the trial court’s sentencing decision, where the judge’s own statements
showed that the defendant’s unwillingness to admit guilt was one of the
factors considered by the judge, reversal and resentencing before another
judge were required). A trial court’s consideration of a defendant’s lack of
remorse in imposing its sentence is fundamental error. See Whitmore v.
State, 27 So. 3d 168, 172 (Fla. 4th DCA 2010) (vacating the sentence and
directing that the defendant be resentenced before a different judge).
Likewise, here, the trial court’s consideration of Davis’s lack of remorse
and failure to take ownership of his actions or apologize to the victims’
families constituted fundamental error. Therefore, we reverse the case for
resentencing before another judge.
Affirmed in part, reversed in part, and remanded.
WARNER, LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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