A criminal defendant has the right to maintain his or her innocence and should not be punished for doing so. A defendant has the constitutional right not to incriminate himself or herself, as well as the right to a jury trial. Florida courts have held that punishing a defendant for exercising those rights, either during trial or sentencing, is a violation of the defendant’s right to due process.

The Florida First District Court of Appeals recently reviewed a case in which the trial court had repeatedly mentioned the defendant’s lack of remorse. The defendant in Macan v. State was convicted of neglect of an elderly person without great bodily harm, possession of a controlled substance, and petit theft. Her convictions were based on her theft of morphine from an elderly hospice patient while the defendant was working as a nurse. The victim did not respond to morphine that was administered to her, and it was discovered that the medication had been watered down. The defendant provided signed statements to her employer and law enforcement that she had taken the morphine, but she testified that those written statements were not true. The jury found her guilty on all counts.

At the defendant’s sentencing, the court repeatedly referred to the defendant’s lack of remorse and failure to take responsibility or apologize to the victim’s family. Defense counsel pointed out that the defendant had maintained that she was innocent, but the court continued to make comments regarding the lack of remorse. The court sentenced the defendant to five years’ probation for neglect, with 364 days in jail as a condition of probation, a consecutive term of four years’ probation for the possession charge, and time served for the petit theft.

The defendant appealed the convictions and the sentences. The appeals court affirmed the convictions without discussion but addressed the sentencing issue. The defendant argued that the trial court fundamentally erred in considering a failure to show remorse in imposing the sentence. Punishing a defendant for maintaining her innocence is a due process violation. It is unconstitutional for the court to consider a lack of remorse in sentencing a defendant who has maintained her innocence throughout the trial and sentencing.

The appeals court noted that, while a mere statement by the court regarding the defendant’s failure to take responsibility does not necessarily constitute a fundamental error, a statement that can only be reasonably interpreted as conditioning the sentencing wholly or partly on the defendant’s claim of innocence does show a fundamental error. In this case, the court repeatedly referenced the lack of remorse.

The appeals court found that the court’s statements could reasonably be interpreted as conditioning the sentence on the defendant’s claim of innocence. The appeals court reversed the sentencing and remanded the case for sentencing by a different judge.

If you are facing criminal charges, you need a Florida criminal defense attorney who understands and will vigorously defend your rights. Call Anidjar & Levine at (800) 747-3733, or submit an online contact form.

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