Posts Tagged ‘DWLSR’


Impermissible Sentencing Factors

Tuesday, June 14th, 2011

A recent case in the Florida 2nd DCA has been decided and discusses some important aspects of Florida sentencing law, namely, what a judge is NOT allowed to consider when imposing sentence.  The case is Smith v. State (2D10-10), and to read the full opinion, go here.

After a jury trial, the Defendant was found guilty of Driving on Suspended License, Habitual Traffic Offender, a third-degree felony.  Before announcing the Defendant’s sentence, the judge stated:

All right. I’ve heard enough. I’m going to speak a little bit out loud. I’ve talked a little bit about this record. You do not have a very good record.

The good thing is I do believe you’re trying to do something but I think you’re kind of on the edge. That means you’re trying to do something but if you can still get away with some little things I think you do.

And I actually believe that you use Ms. Chandler . . . as a person to hide behind or to help with some of the issues that you have.

But what I didn’t hear is pretty much most things, you didn’t do the Burglary. Well, the Grand Theft really wasn’t you. The Driving While License [Revoked] is because of all the cops in Dade County. And I haven’t really heard you accept responsibility for anything.

And I’m not real convinced, as well as you’re [sic] fiancée’s story as to what occurred because I do believe that when you look at what is in the report—and I guess the officer could have lied here about it—but I do look at the fact that if there was something so bad and that you had to drive, you don’t then get back in the car and drive and actually get lost, according to her calling people, how do I get to the police, how do I get there and then drive.

There was no testimony that when she got there and bailed you out that now she either had a remarkable healing on the highway or it still wasn’t a problem until she got here. Then she had a remarkable healing here and then still drove to Miami and wasn’t . . . or to Arcadia and drove to Sebring, not real convinced of that story. It appears that the jury was not as well. I do believe that you use her as a way to hide some of your actions.

Now, I do believe you’ve been trying to [sic]. I do believe some instances you have. But, you know, to be driving again in ’08 and pick up Driving While License Suspended, pick up another one here with all these traffic summons and traffic fines still outstanding.

The Court then sentenced Defendant to 3 years prison.

On appeal, the Court found three factors the judge relied on to be impermissible when imposing sentence:

1.  Court cannot rely on defendant’s assertions of his innocence

2.  Court cannot rely on defendant’s refusal to admit guilt

3.  Court cannot consider the truthfulness of defendant’s testimony

In the end, the 2nd DCA found these considerations were a denial of due process resulting in fundamental error.  The case was reversed and remanded for sentencing before a different judge.


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