At page 1216 reversing when the trial court noted at sentencing that the defendant “maintained his innocence at trial and during sentencing5 citing cases
- Alvin Davis v. State of Florida, 332 So. 3d 970 (Fla. 2021).published(reversing when the trial court noted at sentencing that the defendant “maintained his innocence at trial and during sentencing)
- Allen v. State, 211 So. 3d 48 (Fla. 4th DCA 2017).published(reversing the defen dant’s sentence that was improperly based on defendant’s denial of involvement and failure to accept responsibility)
- Avery Corbitt v. State, 220 So. 3d 446 (Fla. 5th DCA 2016).published 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…
- Robinson v. State, 108 So. 3d 1150 (Fla. 5th DCA 2013).publishedJiles v. State, 18 So.3d 1216, 1216 (Fla. 5th DCA 2009).
- Carl Lewis Burns v. State of Florida, No. 16-5113 (Fla. 1st DCA July 11, 2018).publishedSee Jackson, 39 So. 3d at 428 (ordering different judge to re-sentence defendant on remand); see also Jiles v. State, 18 So. 3d 1216, 1216-17 (Fla. 5th DCA 2009) (same).
v.
STATE of Florida, Appellee
Kevin A. Jiles appeals his convictions and sentences for burglary of a dwelling with a firearm, false impi-isonment with a firearm and possession of a firearm by a convicted felon. We find no revei-sible error relating to Jiles’ trial, and affirm the convictions without elaboration. However, we agree with Jiles that the sentencing record reflects a consideration by the court of improper sentencing factors. Specifically, after Jiles maintained his innocence at trial and dui-ing sentencing, the judge ci-edited a co-defendant for “accepting] responsibility for what he did and ... [being] willing to take the hit for what he did without going through the process.” By contrast, the judge noted that Jiles did not “accept x-esponsibility” but “denied [his] involvement.” These are improper sentencing considerations. See, e.g., Hannum v. State, 13 So.3d 132, 135-36 (Fla. 2d DCA 2009) (holding trial court’s improper considei-ation during sentencing of fact that defendant maintained his innocence at trial and at sentencing and refused to take responsibility for his actions was equivalent to a denial of due process and thus constituted fundamental error); Bracero v. State, 10 So.3d 664, 665-66 (Fla. 2d DCA 2009) (holding that consideration of claim of innocence as a factor in determining sentences violated defendant’s due process rights); Soto v. State, 874 So.2d 1215, 1216 (Fla. 3d DCA 2004) (holding that defendant’s protestation of innocence and unwillingness to admit guilt were impex-missi-ble considerations for sentencing, and that a trial court’s statements indicating consideration of those factors required reversal for resentencing before another judge).
[*1217] Accordingly, we reverse the sentences and remand with directions that Jiles be resentenced before a different judge.
CONVICTIONS AFFIRMED; SENTENCES REVERSED; REMANDED WITH DIRECTIONS.
LAWSON, EVANDER and COHEN, JJ., concur.