FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                 _____________________________

                         No. 1D18-5299
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DEVIN R. BARTLEY,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
James Daniel, Judge.

                       September 10, 2020


RAY, C.J.

    Devin R. Bartley challenges the thirty-five-year sentence
imposed by the trial court after he pleaded guilty to one count of
second-degree murder. He alleges that the court committed
fundamental error by considering his lack of remorse when
imposing the sentence. For the reasons discussed below, we affirm.

                                I.

    The State charged Bartley with second-degree murder
stemming from his involvement in a botched robbery of the victim.
Bartley entered a negotiated plea of guilty as charged in exchange
for the State’s agreement to waive the twenty-five-year
mandatory-minimum sentence that would otherwise apply. The
plea agreement also called for a presentence investigation (“PSI”)
report before sentencing and provided for a sentencing range of ten
to thirty-five years in prison, with a mandatory-minimum term of
ten years.

     After accepting Bartley’s guilty plea, the trial court ordered a
PSI. In part, the PSI author noted: “The offender exhibited no
remorse for the victim or his actions. . . . It would appear to this
writer that the defendant does not fully take responsibility for his
actions or his role in the victim’s death.” The PSI ultimately
recommended a sentence of ten years in prison.

     At the sentencing hearing, defense counsel challenged the
PSI’s conclusion that Bartley did not show remorse. In his
allocution, Bartley asked the victim’s family to forgive him for “my
role in this entire situation.” He also said, “I felt as though I was
protecting myself, but yet I was hurting someone else and that was
never my intentions,” and “I caused [sic] someone their life and I
would like to ask for forgiveness.” His counsel repeatedly sought
mercy from the court and asserted that Bartley was remorseful.

     In response, the State argued that it showed Bartley mercy
when it decided not to seek an indictment for felony murder—
which carried a mandatory life sentence—so that Bartley “would
not lose his entire life, although he did cause [the victim] to lose
his life.” Relying on the PSI, the State asserted that Bartley
showed no remorse for his actions and that his apology at
sentencing “was flat.”

    When imposing the sentence, the trial court stated in part:

    The State has shown you mercy in this case . . . by
    agreeing to a ten-year to thirty-five-year sentence, the
    question is, should this court afford you any further
    mercy based on everything that I have heard? And
    unfortunately, I did not feel that any further mercy is
    warranted in this case given what’s happened costing the
    life of a completely innocent person . . . .




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     The court then adjudicated Bartley guilty and sentenced him
to thirty-five years in prison with a ten-year mandatory-minimum
sentence. This appeal followed.

                                 II.

     Bartley contends that the trial court improperly considered
his lack of remorse when imposing sentence because such a
consideration violates his privilege against compelled self-
incrimination provided by the Fifth Amendment to the U.S.
Constitution. He alleges that because his remorse, or lack thereof,
was the central issue raised by both parties at sentencing, the
court’s statement that it should not afford him any further mercy
“based on everything I have heard” shows that his sentence was
conditioned, at least in part, on his perceived lack of remorse.

     Bartley’s claim lacks merit. To begin with, Bartley has failed
to show that consideration of a lack of remorse affected his
sentence. That the trial court imposed the maximum sentence
under the plea agreement does not mean the court (1) found
Bartley unremorseful, or (2) used that against him in sentencing.
Consideration of the entirety of the court’s statement preceding
the pronouncement of sentence demonstrates that the court
considered Bartley’s mitigating evidence and the nature of the
crime and found the latter more persuasive. To be sure, the court
stated exactly why it imposed the sentence it did—Bartley’s
actions cost an innocent man his life.

     Even if the court did consider Bartley’s lack of remorse, there
was no error. In Davis v. State, 

(Fla. 1st DCA 2019)
(en banc), review granted No. SC19-716, 

(Fla.
June 11, 2019), this Court, sitting en banc, held that in non-capital
sentencing proceedings, a trial court may consider a defendant’s
lack of remorse or failure to take responsibility when imposing
sentence.

      What is more, the pre-Davis prohibition against consideration
of lack of remorse does not apply to a defendant, like Bartley, who
has pleaded guilty and admitted his involvement in the crime. See
Corbitt v. State, 

, 450–51 (Fla. 5th DCA 2016); see
also Peake v. State, 

, 1325–26 (Fla. 1st DCA 1986)
(affirming the defendant’s sentence and approving the trial court’s
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reliance on his apparent lack of remorse when he admitted guilt
rather than maintaining his innocence). Nor does the pre-Davis
prohibition apply to defendants who argue remorse as a reason to
mitigate the sentence. See Catledge v. State, 

, 940–
41 (Fla. 1st DCA 2018), receded from on other grounds by 

. Here, Bartley admitted committing the crime by
pleading guilty, and at sentencing he voluntarily incriminated
himself in asking for mercy. Thus, even if Davis did not control this
case, Bartley would not be entitled to relief.

                                III.

     Because Bartley’s claim that the trial court considered his
lack of remorse when imposing sentence is unsupported by the
record, and because the court was well within its rights to consider
the lack of remorse had it chosen to do so, we affirm his sentence.

    AFFIRMED.

ROWE and TANENBAUM, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Mitchell A. Stone and Valarie Linnen, Jacksonville, for Appellant.

Ashley Moody, Attorney General, and Benjamin L. Hoffman,
Assistant Attorney General, Tallahassee, for Appellee.




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