FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-0165
                  _____________________________

ALVIN DAVIS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Robert R. Wheeler, Judge.

                           April 25, 2019

                      ON HEARING EN BANC


WINSOR, J.

     As the Florida Supreme Court explained in its 1990 Holton v.
State decision, “[a] defendant has the right to maintain his or her
innocence and have a trial by jury.” 

, 292 (Fla. 1990).
And “because due process guarantees an individual the right to
maintain innocence even when faced with evidence of
overwhelming guilt,” a defendant’s decision to not plead guilty
“cannot be used against him or her during any stage of the
proceedings.” Id. In short, the court concluded, “[a] trial court
violates due process by using a protestation of innocence against a
defendant.” Id. (citing U.S. Const. amend. V; Art. I, § 22, Fla.
Const.).
      Starting from these fundamental propositions, Florida’s
district courts have developed new, different rules. “Over time,
case law has expanded the rule in Holton and applied it in cases
which indicate that it is generally improper for the sentencing
court to consider the defendant’s lack of remorse.” Rankin v. State,

, 1096-97 (Fla. 4th DCA 2015) (marks omitted)
(quoting Peters v. State, 

, 847 (Fla. 4th DCA 2013)).
For its part, this court has explicitly held that “[a] lack of remorse
or a failure to accept responsibility may not be considered by the
trial court when fashioning an appropriate sentence.” Dumas v.
State, 

, 1048 (Fla. 1st DCA 2013) (emphasis added)
(citing Green v. State, 

, 1171 (Fla. 3d DCA 2012)
(relying on Holton)); see also Wood v. State, 

, 557
(Fla. 1st DCA 2014) (“Our precedents make clear that a sentence
conditioned, even in part, on a defendant’s lack of remorse and
claim of innocence violates due process and warrants remand for
resentencing before a new judge.” (marks omitted)); Jackson v.
State, 

, 428 (Fla. 1st DCA 2010) (reversing sentence
after sentencing judge said “since you show no remorse or regret
for any of your actions I’m going to sentence you to 25 years”);
Ritter v. State, 

, 414 (Fla. 1st DCA 2004) (holding
that reliance on lack of remorse violates due process); K.Y.L. v.
State, 

, 1381 (Fla. 1st DCA 1997) (citing Holton)
(“[L]ack of contrition or remorse is a constitutionally
impermissible consideration in imposing sentence.”), disapproved
of on other grounds by State v. J.P.C., 

 (Fla. 1999).
Decisions from other districts have said the same thing. See, e.g.,
Chiong-Cortes v. State, 

, 1154 (Fla. 3d DCA 2018)
(“[C]omments indicating the trial judge considered Appellant’s
lack of remorse in fashioning the sentence constitute reversible
error.”); Davis v. State, 

, 1160 (Fla. 4th DCA 2014)
(“A trial court’s consideration of a defendant’s lack of remorse in
imposing its sentence is fundamental error.”); Whitmore v. State,

, 169 (Fla. 4th DCA 2010) (“[T]he trial court’s reliance
on these factors [lack of remorse and failure to accept
responsibility] violated [defendant’s] due process rights and
constituted fundamental error.”). But see St. Val v. State, 

 1146, 1146 (Fla. 4th DCA 2007) (“We reject appellant’s
contention that a sentencing judge may never take a defendant’s
lack of remorse into consideration when imposing sentence.”).


                                  2
     We granted en banc review to consider whether these cases
state a correct rule of law, and we conclude they do not. We hold
that a trial judge does not violate a defendant’s due process rights
by merely considering the defendant’s lack of remorse or refusal to
accept responsibility. We hold that lack of remorse and refusal to
accept responsibility can be valid sentencing considerations when
sentencing within the statutory range, and we recede from our
cases that suggest otherwise.

                                 I.

     A jury convicted Davis of possessing a firearm as a convicted
felon. According to trial testimony, a teenager was driving a car
with Davis as a passenger. Officers stopped the car and found
drugs, drug paraphernalia, and a gun. The teenage driver testified
that he did not know a gun was in the car until right before the
traffic stop, when Davis pulled out the gun, wrapped it in an
orange shirt, and stuffed it under the seat.

     The teen’s testimony was essential, and the defense suggested
it was also untrue. The defense theorized that officers conditioned
the teen’s release on his implicating Davis. The defense noted that
although the teen told officers the drugs and paraphernalia were
his, officers opted to cite him, not arrest him. In its rebuttal
closing, the State referenced a dashcam video and argued that “if
that audio had recorded at any point the officer saying, hey, if you
point your finger at this guy, we’ll give you a juvenile citation and
let you go home-- . . . .” Defense counsel interrupted and objected
to “burden shifting,” and the trial court concluded the State’s
argument was improper because the parties stipulated to
admitting the video without audio. The State, resuming its
rebuttal argument, told the jury that “[i]f there had been some
special deal cooked up, I think we would have heard about it.” The
jury convicted.

    Davis moved for a new trial. After a hearing, the court denied
the motion, and the case proceeded to sentencing. The presentence
investigation report noted Davis’s “extensive criminal history,”
which included “numerous violent offenses.” It also concluded that
Davis “appears to have a history of gang related activity” and
“apparently continues to be a threat to the safety of the

                                 3
community.” The PSI report recommended the maximum
sentence. 1

     At the sentencing hearing, Davis declared he was innocent.
He insisted that the gun was not his, that the jury convicted him
without sufficient evidence, and that his counsel performed
inadequately. After Davis spoke, the court pronounced sentence.
In doing so, the court recounted Davis’s significant criminal
history and told Davis “you still fail to take any responsibility for
your actions.” The court concluded that, “considering your history
here, your failure to take any responsibility, the nature of the
crime, the fact that it involves a firearm, the Court will sentence
you to 15 years . . . , which is the statutory maximum.”

     The principal issue we now face is whether the court’s
observation that Davis “still fail[s] to take any responsibility for
[his] actions” means the court violated Davis’s due process rights.

                                 II.

     Although we granted en banc review to consider the
sentencing issue, Davis also argues that the court erred in denying
his new-trial motion. We address this argument first because it
would, if successful, moot the sentencing issue.

     “A trial court’s denial of a motion for a new trial is reviewed
under an abuse of discretion standard. In order to demonstrate
abuse, the nonprevailing party must establish that no reasonable
person would take the view adopted by the trial court.” Stephens
v. State, 

, 754 (Fla. 2001). Here, Davis argues that
the prosecutor’s comments were improper burden shifting,
warranting a new trial. After a hearing, the trial court offered
several cogent reasons for denying the new-trial motion. First, the
court concluded that defense counsel opened the door, both by
cross-examining the officer about the existence of an audio

    1 A PSI’s purpose is to provide information to help the court
impose an appropriate sentence. See Fla. R. Crim P. 3.712(a). In
this case, despite moving to habitualize Davis and advising the
court that it had done so, the State did not pursue habitualization
at sentencing.

                                 4
recording and by suggesting in closing that there was a deal for
leniency with the teen driver. Second, the court found that the
comment was brief, that counsel stopped almost immediately for a
sidebar, and that the comment likely did not influence the jury.
Third, the court concluded that any error would have been
harmless because of, among other things, the fact that Davis’s
DNA was on the orange shirt in which the gun was wrapped.

     We find no abuse of discretion in the trial court’s order. We
therefore affirm the conviction and turn now to the sentencing
issue.

                                 III.

    As federal and state courts have frequently said, “[i]t is well
established that a sentencing judge may consider lack of remorse
when imposing a sentence.” United States v. Johnson, 

, 1090 (7th Cir. 1990); accord State v. Herrera, 

,
168 (Idaho 2018) (“A trial court does not err by considering a
defendant’s lack of remorse at sentencing . . . .”); People v. Mulero,

, 1337 (Ill. 1997) (“It is well settled that a
defendant’s remorse or lack thereof is a proper subject for
consideration at sentencing.”). 2


    2 These cases are not outliers. See, e.g., United States v. Smith,

, 1016 (9th Cir. 2005) (explaining that lack of remorse
is a “legitimate sentencing factor[]”); United States v. Ford, 

, 467 (7th Cir. 1988) (“[I]n determining the appropriate
sentence for a defendant, one relevant factor for the district court
to consider is the defendant’s refusal to recognize his offense.”);
United States v. Bangert, 

, 1308-09 (8th Cir. 1981)
(holding it permissible to consider lack of remorse in sentencing);
Isaacs v. State, 

, 323 (Ga. 1989) (“[T]he defendant’s
remorse or lack thereof is a permissible area of inquiry during
sentencing.”); Deane v. State, 

, 205 (Ind. 2001)
(“Lack of remorse is a proper factor to consider in imposing a
sentence.”); Owens v. State, 

, 1378 (Ind. 1989)
(“There is no general prohibition against using lack of remorse as
a sentencing factor.”); State v. Swint, 

, 1029 (Kan.
2015) (noting court had “approved lack of remorse as appropriate
for consideration in criminal sentences”); Commonwealth of Pa. v.
                                  5
     In fact, Florida sentencing statutes explicitly authorize
consideration of remorse and responsibility. A trial court may
apply “[a] downward departure from the lowest permissible
sentence” if the offense was an isolated incident done in an
unsophisticated way and was one “for which the defendant has
shown remorse.” § 921.0026(1), (2)(j), Fla. Stat. (2018). Even before
the Legislature enacted that provision, the Florida Supreme Court
approved downward departures based on remorse. State v. Sachs,

, 51 (Fla. 1988) (including “remorse” among the “valid
factors considered by the trial court”). The federal sentencing
guidelines similarly consider “acceptance of responsibility” as a
legitimate and appropriate factor. See, e.g., United States
Sentencing Guidelines Manual § 3E1.1(a) (U.S. Sentencing
Comm’n 2018) (“If the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the offense level by 2
levels.”); id. § 3E1.1(a) cmt. (“[A] defendant who clearly
demonstrates acceptance of responsibility for his offense . . . is
appropriately given a lower offense level than a defendant who has
not demonstrated acceptance of responsibility.”). In short, courts


Miller, 

, 902 (Pa. 1999) (“[T]he demeanor of a
convicted defendant, including his apparent lack of remorse, is a
proper consideration in fixing the sentence for a non-capital
offense.”); State v. Pico, 

, 114 (Wis. 2018) (“The
circuit court’s operative statement on this subject was simply ‘I
will consider whether or not you demonstrate remorse as part of
my sentence.’ Taken at face value, that is an entirely appropriate
and unremarkable statement—remorse is a proper factor to
consider in developing a sentence.”). Although Judge Makar’s
dissent suggests this is some “federal rule” with a “hodgepodge” of
state courts in agreement, he cites law review articles (albeit for
other purposes) that confirm the consistency of these decisions. See
Caleb J. Fountain, Silence and Remorselessness, 81 ALB. L. REV.
267, 288-89 (2018) (“That a finding of remorselessness is a legal
basis upon which a defendant’s punishment may be increased is
nearly beyond dispute.”); Rocksheng Zhong, MD, MHS, Judging
Remorse, 39 N.Y.U. REV. L. & SOC. CHANGE 133, 137 (2015) (“The
consideration of remorse or its absence as a mitigating or
aggravating factor during criminal sentencing is accepted in both
federal and state courts.”).

                                 6
and legislatures throughout the country—including the Florida
Supreme Court and the Florida Legislature—have recognized that
remorse can be a proper sentencing factor.

      The commonsense approach of considering a defendant’s
remorse—or willingness to take responsibility—fits with the
Legislature’s command that each sentence be not only
commensurate with the severity of the offense but also fashioned
in light of “the circumstances surrounding” it. § 921.002(1)(c), Fla.
Stat. The United States Supreme Court long ago recognized that
“possession of the fullest information possible concerning the
defendant’s life and characteristics” is “[h]ighly relevant—if not
essential” to a judge’s selection of an appropriate sentence.
Williams v. People of State of N.Y., 

, 247 (1949); see
also United States v. Grayson, 

, 50 (1978) (describing
as a “fundamental sentencing principle” that “‘a judge may
appropriately conduct an inquiry broad in scope, largely unlimited
either as to the kind of information he may consider, or the source
from which it may come’” (quoting United States v. Tucker, 

, 446 (1972))). Florida courts thus consider a wide array of
factors in sentencing. See, e.g., Noel v. State, 

, 379
(Fla. 2016) (“A trial court may consider a defendant’s financial
resources at sentencing.”); Hall v. State, 

, 1232
(Fla. 1st DCA 2018) (noting that Criminal Punishment Code
allows consideration of “a juvenile’s youth and its attendant
characteristics”); Charles v. State, 

, 72 (Fla. 4th DCA
2016) (“The sentencing factors properly considered by the trial
court relate to the defendant, his offense, and the victim.”); Imbert
v. State, 

, 1175 (Fla. 4th DCA 2015) (holding judges
“may consider a variety of factors, including a defendant’s criminal
history, employment status, family obligations, and over-all
reputation in the community”); see also Apprendi v. New Jersey,

, 481 (2000) (noting that judges may “exercise
discretion—taking into consideration various factors relating both
to offense and offender—in imposing a judgment within the range
prescribed by statute”). 3



    3 In Norvil v. State, the Florida Supreme Court adopted a
“bright line rule for sentencing purposes: a trial court may not
consider a subsequent arrest without conviction during sentencing
                                 7
     A defendant’s remorse or willingness to accept responsibility
comprises part of the whole picture. These factors speak to a
defendant’s character and to the defendant’s potential for
rehabilitation. As our supreme court has recognized, “[t]o an
unspecified degree, the sentencing judge is obligated to make his
decision on the basis, among others, of predictions regarding the
convicted defendant’s potential, or lack of potential, for
rehabilitation.” Simmons v. State, 

, 320 (Fla. 1982)
(quoting Grayson, 438 U.S. at 47-48). Indeed, with a legislative
pronouncement that rehabilitation “is a desired goal of the
criminal justice system” (albeit subordinate to punishment),
§ 921.002(1)(b), Fla. Stat., consideration of remorse or acceptance
of responsibility is critical: “If a defendant is remorseful, it means
that he is sorry he committed the crime for which he is to be
sentenced. One who so regrets his acts may not commit such acts
in the future.” St. Val, 

 at 1146; accord Burr v. Pollard,

, 832 (7th Cir. 2008) (explaining that “an indifferent
criminal isn’t ready to reform,” that “a remorseful criminal is less
likely to return to his old ways,” and that therefore remorse “is
properly considered at sentencing because it speaks to traditional


for the primary offense.” 

, 410 (Fla. 2016). That
bright-line rule is not at issue here, and its underlying rationale
does not undermine our conclusion. The court concluded that the
Criminal Punishment Code explicitly authorized consideration of
“prior arrests” and thus implicitly precluded consideration of later
arrests. Id. at 408-09. But the PSI provision referenced in Norvil
authorizes consideration of, among many other things, “the
offender’s motivations and ambitions and an assessment of the
offender’s explanations for his or her criminal activity.”
§ 921.231(1)(l), Fla. Stat. A defendant’s motivations, ambitions,
and explanations of conduct capture remorse or willingness to
accept responsibility. And like many of the other PSI
considerations geared toward seeing the whole picture—
educational background, social history, medical history,
environments to which the offender might return, treatment
opportunities, vocational training opportunities, prior criminal
history, “[a] complete description of the situation surrounding the
criminal activity,” and so on, id. § 921.231(1)—these factors aid the
court in gauging a defendant’s rehabilitation potential.

                                  8
penological interests such as rehabilitation”); cf. also Simmons v.
State, 

, 320 (“A person’s potential for rehabilitation
is an element of his character . . . .”); State v. Stevens, 

,
226 (Idaho 2008) (concluding that “a court may consider a
defendant’s continued assertion of innocence when evaluating the
possibility of rehabilitation”).

    For these reasons, we can no longer embrace the blanket,
judge-made rule that when it comes to sentencing, “[a] lack of
remorse or a failure to accept responsibility may not be
considered.” Dumas, 134 So. 3d at 1048; see also, e.g., Wood v.
State, 

 (Fla. 1st DCA 2014); K.Y.L., 685 So. 2d at
1381 (“[L]ack of contrition or remorse is a constitutionally
impermissible consideration in imposing sentence.”).

     Aside from the never-consider-remorse-or-responsibility rule
that some cases have followed, there is a separate (and perhaps
more restrained) view that judges may rely on remorse to reduce a
sentence but may not rely on a lack of remorse to increase a
sentence. Under this view, remorse is a proper mitigating factor
but not a proper aggravating factor. See Ritter v. State, 

, 414 (Fla. 1st DCA 2004) (citing Holton, among others)
(“Although remorse and an admission of guilt may be grounds for
mitigation of sentence, the opposite is not true.”); see also Catledge
v. State, 

, 941 (Fla. 1st DCA 2018). And to be sure,
the Florida Supreme Court has applied this concept in capital
sentencing. See Pope v. State, 

, 1078 (Fla. 1983)
(“Any convincing evidence of remorse may properly be considered
in mitigation of the sentence, but absence of remorse should not be
weighed either as an aggravating factor nor as an enhancement of
an aggravating factor.”). But rules applicable to the unique capital-
sentencing context do not always find easy application in everyday
sentencings like Davis’s, and the mitigation-versus-aggravation
rules do not apply here.

     The maximum penalty in a death-penalty case—death—
requires more than just a conviction; it requires proof of a statutory
aggravating factor. See § 921.141, Fla. Stat. Lack of remorse is not
among the statutory aggravating factors and cannot be used to
justify a death sentence. Shellito v. State, 

, 842 (Fla.
1997). On the other hand, capital defendants can assert anything

                                   9
in mitigation, Hitchcock v. Dugger, 

, 394 (1987), and
anything includes remorse. It is therefore unsurprising that the
Florida Supreme Court has held that in the capital-sentencing
context, remorse can help a capital defendant as a mitigating
factor, but that lack of remorse cannot work against him as an
aggravating factor. See Oliver v. State, 

, 614-15 (Fla.
2017); Pope, 441 So. 2d at 1078.

      Judges in noncapital cases, though, do not consider
“aggravators” and “mitigators” in the same sense that capital
sentencers do. After the Criminal Punishment Code’s enactment,
our sentencing statutes no longer “contemplate upward departure
sentences, because generally the statutory maximum sentence is
the highest possible sentence for any crime.” Bryant v. State, 

, 1258 (Fla. 2014); see also § 921.002(1)(g), Fla. Stat.
(“The trial court judge may impose a sentence up to and including
the statutory maximum for any offense . . . .”). In Davis’s case,
then, the judge had statutory authority to impose a sentence of up
to fifteen years. § 775.082(1)(d), Fla. Stat. He could do so with a
remorseful defendant, and he could do so with an unremorseful
defendant. He could do so with a defendant taking responsibility
for his crimes, and he could do so with a defendant unwilling to
take responsibility. The conviction alone was enough to justify the
sentence. No “aggravator” or additional findings were necessary.
Lane v. State, 

, 598 (Fla. 1st DCA 2008).

      Next, if we held that Davis’s refusal to take responsibility
could not increase his sentence but could justify not lowering his
sentence, see Ritter, 885 So. 2d at 414, we would have to figure out
which of those happened, and it is not clear how we would do that.
If a judge gives an unremorseful defendant a longer sentence than
he might have given a remorseful defendant, we often will never
know whether the resulting differential flowed from an
“aggravated” sentence or an “unmitigated” sentence. There is no
baseline sentence, no upward or downward departure—just a
sentence that involved a judge’s consideration (in some fashion) of
the offense and the defendant’s characteristics. Indeed, that is the
situation here. Yet our dissenting colleagues vote to reverse
Davis’s sentence without ever deciding whether the judge
impermissibly increased Davis’s sentence or permissibly refused to
decrease it.

                                 10
     Notably, none of today’s opinions doubts the legality of
considering remorse or acceptance of responsibility to reduce (or
not reduce) a sentence. 4 This further supports our conclusion that
these considerations are, in fact, valid sentencing considerations.
It should go without saying that no up-versus-down distinction
would be an issue with truly impermissible sentencing factors.
With religion, for example, we would never say a judge could
lighten a sentence for defendants who disavowed Catholicism, so
long as the judge did not enhance sentences for those who
embraced Catholicism. Cf. Torres v. State, 

, 442 (Fla.
1st DCA 2013) (reversing sentence where judge assumed
defendant was Catholic and made comments that could
“reasonably be construed to suggest that the trial judge based
appellant’s sentence, at least in part, on religion”). We would
instead say—quite emphatically—that a defendant’s religious
faith must not play any part in the sentence. In other words, we
would say improper sentencing factors should not be factors in
sentencings—up or down. See id. (“No one should be punished, or
conversely shown leniency, merely because he or she may be a
member of a particular religion.” (emphasis added)); cf. also
Roberts v. United States, 

, 557 n.4 (1980) (“We doubt
that a principled distinction may be drawn between ‘enhancing’
the punishment imposed upon the petitioner and denying him the
‘leniency’ he claims would be appropriate if he had cooperated.”);
Noel, 191 So. 3d at 379 (“We view a sentence providing for a
reduction of prison time upon the payment of restitution no




    4 Suppose, for example, the judge had explained his sentence
this way: “Mr. Davis, the severity of your crimes, coupled with your
extensive criminal history, warrant the maximum sentence, and
based on these factors alone, that is the sentence I would impose.
The only thing that could have convinced me to do otherwise would
have been had you shown remorse today, which you have not.
Therefore, I sentence you to fifteen years.” None of today’s dissents
suggests that would be impermissible. Yet they apparently assume
that the trial judge increased the sentence from some other
unannounced baseline, rather than declined to reduce from the
maximum.

                                 11
different than a trial court imposing a lengthier sentence if the
defendant fails to make a restitution payment . . . .”).

     This brings us back to the rule from Holton, from which some
of our cases eventually determined that courts may not consider—
at all—a defendant’s failure to take responsibility or a defendant’s
lack of remorse. Holton held that “[t]he fact that a defendant has
pled not guilty cannot be used against him or her during any stage
of the proceedings.” 

 at 292. But when a defendant
forgoes permissible benefits of pleading guilty (such as a lenient
sentence), it does not necessarily follow that his not-guilty plea was
unconstitutionally “used against him.”

     The United States Supreme Court has “squarely held that a
State may encourage a guilty plea by offering substantial benefits
in return for the plea.” Corbitt v. New Jersey, 

, 219
(1978). These substantial benefits can include sentences lower
than what would be possible after trial, or even sentences lower
than would be required after trial. Id.; cf. also § 921.0026(2)(a)
(authorizing downward departure if it “results from a legitimate,
uncoerced plea bargain”). In other words, it does not violate the
Constitution to present defendants with the choice of either giving
up the right to a trial or losing the prospect of a reduced sentence.
Presenting defendants with these choices “clearly may have a
discouraging effect on the defendant’s assertion of his trial rights,
[but] the imposition of these difficult choices is an inevitable—and
permissible—attribute of any legitimate system which tolerates
and encourages the negotiation of pleas.” Bordenkircher v. Hayes,

, 364 (1978) (marks and alterations omitted).

     To the extent Davis had to choose between maintaining his
innocence at sentencing or seeking a more favorable sentence, he
was in no different situation than defendants facing plea offers
every single day. In fact, had Davis requested a downward
departure based on section 921.0026(2)(a)—which requires a
showing that there was “a legitimate, uncoerced plea bargain”—
the trial court obviously would have rejected the request because
Davis did not plead guilty. Yet we surely would not say his decision
to plead not guilty was unconstitutionally “used against him.” Cf.
United States v. Reed, 

, 150 (5th Cir. 1989) (explaining
that a defendant seeking reduced sentence based on acceptance of

                                 12
responsibility “may find it difficult, after conviction, to persuade
the district court that he is entitled to [that] reduction,” but noting
that “this difficulty does not mean that a defendant is penalized
for failing to plead guilty”) (quoting United States v. White, 

, 826 (5th Cir. 1989)). Nothing in Holton’s broad and
general language changes any of this. 5

     That is not to say, of course, that courts may punish
defendants for exercising their jury-trial rights. “Under our
constitutional system it would be impermissible for the sentencing
authority to mete out higher sentences . . . as punishment for those
who successfully exercised their right[s].” Chaffin v. Stynchcombe,

, 24 (1973). A defendant may still challenge a sentence
not exceeding the statutory maximum, if he can “argue that his
sentence was a result of vindictiveness.” Hall v. State, 

, 762 (Fla. 2002). There is nothing in this record, though, to
even hint this was the case. As in Corbitt, “[w]e discern no element
of retaliation or vindictiveness against [the defendant] for going to
trial. . . . Nor does this record indicate that he was being punished


    5   In fact, long after Holton, the Florida Supreme Court
recognized that “not every burden on the exercise of a
constitutional right, and not every pressure or encouragement to
waive such a right, is invalid.” Pasha v. State, 

, 702
(Fla. 2017) (quoting Corbitt, 439 U.S. at 218). Moreover, Holton
was a death case, and it applied its broad language in a context
different from that presented here. 

 at 292. The
argument in Holton was that the trial judge failed to consider
impaired capacity as statutory mitigating factor under the capital-
sentencing scheme. The trial court rejected use of that factor,
noting that the defendant maintained he did not commit the crime
and concluding that “[t]his factor would not apply in view of that
sworn testimony.” Id. The supreme court explained that “entering
a plea of not guilty does not preclude consideration by the
sentencer of matters relevant to mitigation.” Id. And in that
context, it explained that a defendant’s not-guilty plea “cannot be
used against him.” Id. It stopped far short of holding that any
consideration regarding lack of remorse requires resentencing. In
fact, the Holton decision affirmed the death sentence, concluding
that any sentencing error was harmless. Id. at 293.

                                  13
for exercising a constitutional right.” 439 U.S. at 223; see also
Beech v. State, 

, 85 (Fla. 1983) (holding that absent
evidence that sentences “were imposed to retaliate against the
petitioners for having pursued their rights, the presumption of
correctness stands”). Again, “withholding the possibility of
leniency from [those electing trial] cannot be equated with
impermissible punishment.” Corbitt, 439 U.S. at 223. “If
[defendant] had been filled with remorse at his resentencing and
admitted his crimes before the district court, it is possible that he
would have received a reduced sentence. But this does not mean
that he was punished for maintaining his innocence in any way
that the Constitution recognizes.” United States v. McClain, 

, 207 (7th Cir. 1993); accord United States v. Thompson, 

, 1201 (7th Cir. 1973) (“A show of lenience to those who
exhibit contrition by admitting guilt does not carry a corollary that
the Judge indulges in a policy of penalizing those who elect to
stand trial.”); St. Val, 

 at 1147 (“This is not a case where
a defendant was punished for protesting his innocence as in . . .
Holton. Nor is it a case where a court used lack of remorse as an
aggravating factor in a first degree murder prosecution.”).

     In some other case, it might appear that a judge’s refusal to
grant leniency is tantamount to punishing the defendant for going
to trial. But this is not that case. Here the judge simply observed
that, after a long criminal history, Davis continued to commit
crimes—that even after multiple convictions and multiple
punishments, Davis “still fail[s] to take any responsibility for [his]
actions.” This did not prove a constitutional violation. 6



    6  One final observation: We are troubled by any suggestion
that judges inclined to consider impermissible sentencing factors
could avoid reversals by curtailing their explanations. A judge who
silently relies on improper factors violates the constitution no less
than a judge who does so loudly. Rather than counsel judges to stay
quiet when violating defendants’ constitutional rights, we ought to
insist judges not violate defendants’ constitutional rights at all.
And we can better review sentences for constitutional violations
when judges explain themselves. Cf. Grayson, 438 U.S. at 44
(quoting sentencing court) (“I’m going to give my reasons for
sentencing in this case with clarity, because one of the reasons may
                                 14
                                 IV.

     Although we affirm Davis’s conviction and sentence, we
certify that we pass upon an issue of great public importance. We
certify the following question, giving the Florida Supreme Court
an opportunity to provide clarity in this area.

    WHEN, IF EVER, MUST AN APPELLATE COURT REVERSE A
    SENTENCE BASED ON THE TRIAL COURT’S CONSIDERATION
    OF “REMORSE,” “FAILURE TO TAKE RESPONSIBILITY,” OR THE
    LIKE?

    The judgment on appeal is AFFIRMED.

B.L. THOMAS, C.J., and ROWE, RAY, OSTERHAUS, JAY, and M.K.
THOMAS, JJ., concur.

B.L. THOMAS, C.J., concurs in an opinion in which JAY and M.K.
THOMAS, JJ., join.

KELSEY, J., concurs in result with opinion.

LEWIS, J., concurs in part and dissents in part in an opinion in
which MAKAR and BILBREY, JJ., join.

WETHERELL, J., concurs in part and dissents in part in an opinion
in which ROBERTS, MAKAR, and BILBREY, JJ., join.



well be considered by a Court of Appeals to be impermissible; and
although I could come into this Court Room and sentence this
Defendant to a five-year prison term without any explanation at
all, I think it is fair that I give the reasons so that if the Court of
Appeals feels that one of the reasons which I am about to enunciate
is an improper consideration for a trial judge, then the Court will
be in a position to reverse this Court and send the case back for re-
sentencing.”); United States v. Brown, 

, 1173 (2d Cir.
1973) (noting, in sentencing context, that “[a] Sphinx-like silence
on the court’s part precludes anyone (including the parties, the
judge, and an appellate tribunal) from learning whether he acted
in error”).

                                  15
MAKAR, J., concurs in part and dissents in part in an opinion in
which LEWIS and BILBREY, JJ., join.

WOLF and WINOKUR, JJ., recused.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

B.L. THOMAS, C.J., concurring.

     No one has a constitutional right to be remorseless about
committing crimes, as well documented in footnote 2 of the
majority opinion. And under specific legislative authorization in
the Criminal Punishment Code, a trial court can impose the
maximum statutory penalty on a remorseless convicted criminal
defendant or any other convicted criminal defendant for a non-
capital felony. See § 921.002(1)(g), Fla. Stat. (2017) (“The trial
court judge may impose a sentence up to and including the
statutory maximum for any offense . . ..”) (emphasis added).
Judicial precedent to the contrary, and those opinions consistent
with that precedent, contravene this specific legislative authority
in violation of the separation of powers enshrined in our organic
law in Article II, section 3, of the Florida Constitution. See Booker
v. State, 

, 1081-82 (Fla. 1987) (“The rule in Florida
historically has been that a reviewing court is powerless to
interfere with the length of a sentence imposed by the trial court
so long as the sentence is within the limits allowed by the relevant
statute.”).

     In addition to authorizing trial courts to impose the maximum
penalty on a convicted felon for any reason, which necessarily
includes the lack of remorse, the Legislature has authorized trial
courts to treat a remorseful convicted criminal defendant more
leniently. See § 921.0026(1),(2)(j), Fla. Stat. (2017) (“A downward
departure from the lowest permissible sentence . . . is prohibited
unless there are circumstances or factors that reasonably justify
the downward departure . . . [including where] [t]he offense was

                                 16
committed in an unsophisticated manner and was an isolated
incident for which the defendant has shown remorse.”) (emphasis
added).

     In enacting the Criminal Punishment Code, the Legislature
specifically rejected prior policy that limited trial courts’
sentencing discretion. Thus, the majority opinion does not violate
the holding of Huffman v. Jones, 

 (Fla. 1978), as
prior cases that interpreted different sentencing laws have no
application to unfettered felony sentencing under the Code.

     Prior judicial decisions commanding trial courts to ignore a
convicted criminal defendant’s lack of remorse or refusal to accept
responsibility not only contravene legislative policy, the rationale
of those decisions flies in the face of common sense, human
decency, and civilized norms. See, e.g., Joreski v. State, 

, 417-18 (Wyo. 2012) (holding trial court did not commit plain
error in considering the defendant’s lack of remorse and flippancy
about chronic sexual abuse of defendant’s daughter when imposing
sentence, and Wyoming law allows consideration of failure to
accept responsibility). In Wainwright v. Goode, 

, 79
(1983), for example, the defendant “was ‘extremely proud of having
murdered [and sexually assaulted ten-year-old] Jason ‘for the fun
of it’” and had “‘absolutely no remorse’ over the murder” and
“would do it again if given the chance.” Contrary to the decisions
that would command sentencers to ignore this lack of remorse, the
Supreme Court held that the Florida Supreme Court did not
violate the Eighth Amendment by affirming the trial court’s
consideration of this nonstatutory aggravating factor. Id.

     The well-reasoned majority opinion correctly notes that this
court and other district courts have unjustifiably limited trial
courts’ sentencing discretion in non-capital felonies by expanding
the rule from the capital case of Holton v. State, 

,
292 (Fla. 1990), regarding a defendant’s assertion of innocence in
the context of “consideration by the [capital] sentencer of matters
relevant to mitigation.” The majority opinion correctly
distinguishes cases where the supreme court addressed capital
sentencing or pre-Criminal Punishment Code sentencing, both of
which entail sentencing statutes that preclude enhanced
sentences, absent very limited and specific considerations. See §

                                17
921.141(3)(a)(2), Fla. Stat. (2017) (“If the jury has recommended a
sentence of . . . [d]eath, the court . . . may consider only an
aggravating factor that was unanimously found to exist by the
jury”) (emphasis added); § 921.001(5), Fla. Stat. (1989) (“The
failure of a trial court to impose a sentence within the sentencing
guidelines shall be subject to appellate review . . . . A departure
sentence shall be based upon circumstances or factors which
reasonably justify the aggravation or mitigation of the sentence”)
(emphasis added).

     The majority opinion correctly recedes from prior precedent
that improperly limits trial courts’ lawful sentencing discretion in
violation of the separation of powers. Therefore, I fully concur in
the majority opinion.

KELSEY, J., concurring in result.

     I concur in the disposition of Appellant’s arguments, and in
certifying a question to the Florida Supreme Court. The issues we
address today merit the supreme court’s consideration. I dissent
from our receding from precedent, however, because I conclude
that supreme court precedent binds us; and if so, only the supreme
court can release us. Hoffman v. Jones, 

, 433-34 (Fla.
1973). Just as all of the district courts have done, the supreme
court has announced and followed a broad rule that lack of remorse
should not be considered in sentencing:

    Unfortunately, remorse is an active emotion and its
    absence, therefore, can be measured or inferred only from
    negative evidence. This invites the sort of mistake which
    occurred in the case now before us—inferring lack of
    remorse from the exercise of constitutional rights. This
    sort of mistake may, in an extreme case, raise a question
    as to whether the defendant has been denied some
    measure of due process, thus mandating a remand for
    reconsideration of the sentence. For these reasons, we
    hold that henceforth lack of remorse should have no place
    in the consideration of aggravating factors.

Pope v. State, 

, 1078 (Fla. 1983); see also State v.
Mischler, 

, 526 (Fla. 1986) (holding, in guidelines

                                18
departure analysis in a non-death case, that “lack of remorse to
support a departure sentence cannot be inferred from either the
mere exercise of a constitutional right or a continuing assertion of
innocence”), superseded by statute on other grounds, ch. 87-110,
§ 2, and ch. 93-406, § 13, Laws of Fla., as recognized in Banks v.
State, 

, 1068 n.8 (Fla. 1999).

    The supreme court addressed the same issues in Beasley v.
State, 

 (Fla. 2000), a death case, quoting with
approval the Fourth District’s remorse analysis in Mischler, a non-
death case:

         “Remorse” is defined in Webster’s Third New
    International Dictionary 1921 (1993), as “a gnawing
    distress arising from a sense of guilt for past wrongs (as
    injuries done to others).” Given this definition, as the
    Fourth District (in discussing why a defendant’s lack of
    remorse which is not “repugnant, odious and
    accompanied by a confession,” cannot be used as a reason
    to depart from sentencing guidelines) queried,

         How can one be expected to show remorse
         concurrently with the maintenance of
         innocence? Nor does a jury guilty verdict [sic]
         automatically extinguish the right to continued
         proclamation of blamelessness. Moreover, even
         if it did, defendants at sentencing could avoid
         aggravation by simply declaring their innocence
         and gratuitously expressing sorrow for the
         victim.

    Mischler v. State, 

, 38 (Fla. 4th DCA 1984),
    approved, 

 (Fla. 1986). As observed in
    Robinson v. State, 

, 6 (Fla. 1988), a lack of
    remorse is not considered an aggravating factor in death
    penalty cases. While “[a]ny convincing evidence of
    remorse may properly be considered in mitigation of the
    sentence,” the absence of remorse “should not be weighed
    either as an aggravating factor [or] as an enhancement of
    an aggravating factor.” Pope v. State, 

,
    1078 (Fla. 1983).

                                19
Beasley, 774 So. 2d at 672; see also, e.g., Fletcher v. State, 

 186, 212-13 (Fla. 2015) (describing as “axiomatic” that State
cannot assert lack of remorse as an aggravating factor, but finding
the error harmless where it was injected through an improper
question and answer from State’s psychological expert); Cromartie
v. State, 

, 562-63 (Fla. 2011) (distinguishing between
errors in sentencing process, and sentence imposed, in non-death
case, and approving district court’s fundamental-error analysis
and conclusion that trial court’s emphasis on defendant’s failure to
take responsibility constituted denial of due process in
sentencing). Generally to the same effect is Holton v. State, 

 284, 292 (Fla. 1990), which the majority discusses. The bottom
line is that we must await the supreme court’s modification of the
governing case law before we adopt a different law for our district
and create conflict with the rest of the State.

     On the merits, I conclude that we can and should affirm
Appellant’s sentence because, considered in context, and even with
no clarification or modification of existing law, this sentence was
not the product of punitive reliance on Appellant’s assertion of
innocence. My concern is for clarifying the analytical process
involved—that of drawing the line between proper sentencing
considerations and improper punishment of the exercise of
constitutional rights. Cf. Burns v. State, 43 Fla. L. Weekly D1569,

 (Fla. 1st DCA July 11, 2018) (certifying question
of great public importance regarding scope of proper consideration
of defendant’s lack of remorse for crime of conviction, and noting
two district court judges’ concurring opinions advocating for
supreme court review of the rule against considering lack of
remorse), review granted, No. SC18-1208 (Fla. Jan. 2, 2019). This
analytical process, like many mental processes in which judges at
all levels engage every day, takes longer to write out than to do.
This analysis should be happening under existing law, and would
be required under the majority’s approach as well. Because
constitutional rights are at stake, the effort seems worthwhile.

               I. Detailed Pre-Sentence Context

     Presentence Investigation Report. Immediately after the
jury rendered its verdict, the State requested, and the trial judge

                                 20
ordered, a presentence investigation report, because the State had
filed a habitual felony offender motion. The PSI was filed with the
trial court and, on Appellant’s motion, included in the record on
appeal. It included Appellant’s prior record as required by law.
§ 921.231(1)(c), Fla. Stat. (2016). Appellant’s PSI reflects a prior
history of ten felony convictions as an adult and eleven
adjudications of guilt as a juvenile (following five juvenile cases in
which     adjudications     were    withheld).    The    disposition
recommendation in the PSI was as follows:

         The defendant has an extensive prior criminal
    history which includes numerous violent offenses. The
    defendant has had opportunities to rehabilitate, however
    apparently chooses to continue to engage in criminal
    behavior. The defendant also appears to have a history of
    gang related activity. The defendant apparently
    continues to be a threat to the safety of the community. It
    is therefore respectfully recommended that he be
    sentenced to the maximum amount of incarceration
    allowed by the sentencing guidelines.

      Prosecutor’s Comments. At the sentencing hearing, the
prosecutor gave the judge Appellant’s criminal punishment code
scoresheet. That scoresheet listed eleven prior offenses: one prior
first-degree felony punishable by life (armed robbery with a
firearm); five second-degree felonies (attempted second-degree
murder, attempted armed robbery with a firearm, discharging
firearm on school property, aggravated battery with a deadly
weapon, and aggravated assault on a law enforcement officer); four
third-degree felonies (aggravated assault with a deadly weapon,
resisting officer with violence, felony battery, and battery on a law
enforcement officer); and one unspecified misdemeanor. The
prosecutor discussed the length of the criminal scoresheet and its
inclusion of numerous violent offenses including multiple firearms
offenses. The prosecutor argued that Appellant’s history justified
imposition of the statutory maximum sentence of fifteen years in
prison with three years minimum mandatory for actual possession
of a firearm. The prosecutor noted that the evidence of guilt was
clear, that Appellant had an extensive “violent history,” and that
the new offense was a flagrant violation of the law, the flagrancy
arising out of the fact that Appellant clearly knew of his own felony

                                 21
history and thus knew he should not have possessed a gun
(emphasis added):

          And, Your Honor, in looking at the defendant’s score
    sheet, it’s quite long and importantly it’s filled with
    violent offenses, a number of them including firearms. .
    . . Based on that violent history, based on him yet again
    possessing a firearm when he knows he’s a convicted
    felon, . . . . The State is asking for the statutory maximum
    of 15 years in the Department of Corrections, with a
    three-year minimum mandatory for actual possession of
    a firearm. We believe that’s the only appropriate sentence
    given the defendant’s flagrant running afoul of the law,
    yet again with a firearm, despite an extensive violent
    history.

    Defense      Counsel’s       Comments.    Defense     counsel
acknowledged that Appellant “has a significant history and it’s not
something that we can deny.” (Emphasis added.) The defense
requested a ten-year sentence as one that would be “substantial
and significant . . . for someone who unfortunately has been
incarcerated for most of his life.”

     Appellant’s Comments. In an allocution to the court filling
nearly three pages of the transcript, Appellant denied that he
possessed or even knew about the gun in the car. He argued that
the juvenile driving the car blamed Appellant in order to receive—
and then actually received—a more lenient charge arising out of
the drug paraphernalia also found in the car. Appellant argued
that the evidence was clearly not sufficient to convict him, and that
he was convicted because his lawyer did not do a good job. He
stated he would apologize if he had done anything wrong, but did
nothing wrong, was not guilty, and was innocent:

        If I did anything wrong, or said anything that’s
    inappropriate, I would apologize. Right now, and I ask—
    I would be asking for leniency, but I did nothing wrong. I
    am not guilty of the charge that I’m accused of. I am
    innocent.




                                 22
    Appellant continued to argue the evidence for another page
and a half of the transcript, asserting that his counsel failed to
protect his interests.

     Trial Judge’s Comments. Immediately after Appellant
discussed his view of the evidence and his lawyer’s performance,
the trial judge stated as follows, making the emphasized comments
that give rise to Appellant’s second argument on appeal (emphasis
added):

         Mr. Davis, quite frankly we’re not here to retry the
    facts of the case. I heard the evidence. It was put before a
    jury and they found beyond a reasonable doubt that you
    are guilty of the charged offense. And from my review of
    the evidence, and from what I heard in the courtroom and
    the testimony and the evidence provided, quite frankly I
    think they got it right.

         And I can see here by your score sheet, you have an
    extensive violent history here and a lot of it involves a
    firearm. We have a second degree murder, attempted
    second degree murder, attempted armed robbery with a
    firearm, armed robbery with a firearm, aggravated
    assault with a deadly weapon, discharging a firearm on
    school property, aggravated battery with a deadly
    weapon, battery on a law enforcement officer, felony
    battery. Just a violent, unfortunate history that we’re
    dealing with. And a lot of it involves a firearm. And now
    we have a new offense that involves a firearm again.

         And quite frankly, you know, they found you with the
    firearm before any harm could come of it, because who
    knows what would have happened[ 1] . . . if there was an
    opportunity to use that firearm in the future. And so that
    is one of the good things that came out of it was that there
    wasn’t that opportunity.



    1 At this point, Appellant interjected, “They found me with the
firearm?” The court did not respond.

                                23
         You still fail to take any responsibility for your
    actions. And considering your history here, your failure to
    take any responsibility, the nature of the crime, the fact
    that it involves a firearm, the Court will sentence you to 15
    years in the Department of Corrections, which is the
    statutory maximum.

     Counsel did not object to the trial judge’s comments or his use
of the word “responsibility.”

     The trial judge’s final emphasized comments raise the
following questions: (A) Is it fundamental error for a sentencing
judge to reference a defendant’s failure to “take responsibility”?;
and (B) If so, how are courts to determine when such comments
are impermissible and require resentencing? The issue is whether
Appellant’s constitutional rights were violated, and therefore our
review is de novo. Cromartie, 70 So. 3d at 563.

                        II. Legal Analysis

             (A) “Responsibility” and “Remorse”

     First, courts need to be clear in using the words
“responsibility” and “remorse.” “Responsibility” means “the
quality, state, or condition of being answerable or accountable.”
“Remorse” means “a strong feeling of sincere regret and sadness
over one’s having behaved badly or done harm; intense, anguished
self-reproach and compunction of conscience, esp. for a crime one
has committed.” Responsibility; Remorse, BLACK’S LAW
DICTIONARY (10th ed. 2014). 2 See also Beasley, 774 So. 2d at 672
(quoting another dictionary definition of “remorse” as “a gnawing
distress arising from a sense of guilt for past wrongs (as injuries
done to others)”) (citations omitted).


    2  The words have similar meanings in the non-legal
dictionary. “Responsibility” means “the quality or state of being
responsible: such as moral, legal, or mental accountability.”
“Remorse” means “a gnawing distress arising from a sense of guilt
for past wrongs.” Responsibility; Remorse, MERRIAM-WEBSTER
ONLINE DICTIONARY, www.merriam-webster.com/dictionary.

                                 24
     In this case, the sentencing judge said only “responsibility,”
not “remorse.” Both words could refer to valid sentencing factors.
Both words could refer instead to a defendant’s refusal to admit
guilt and display regret for the crime of conviction. Some
sentencing judges appear to use these words interchangeably,
while others appear to intend different meanings. In short, these
words are inherently ambiguous (unlike, for example, explicit
references to a defendant’s race, gender, age, or faith), and the
context of their use in sentencing can be ambiguous.

     Courts cannot punish defendants for exercising their
constitutional rights to remain silent, maintain innocence, and go
to trial on the pertinent crime of conviction. Holton, 

 at
292 (holding courts cannot penalize defendants for exercising their
constitutional rights); see Amends. V (silence), VI (trial), U.S.
Const.; Art. I §§ 9 (silence), 22 (trial), Fla. Const.. These rights
exist at all stages of a criminal proceeding “because due process
guarantees an individual the right to maintain innocence even
when faced with evidence of overwhelming guilt. A trial court
violates due process by using a protestation of innocence against a
defendant.” Holton, 

 at 292. We must determine whether
constitutional rights have been violated.

     On the other hand, sentencing courts can consider and rely
upon factors such as defendants’ prior criminal convictions,
character, likelihood of rehabilitation or recidivism, the deterrent
effect of punishment, and danger to others upon release.
§ 921.002(1)(d) (“The severity of the sentence increases with the
length and nature of the offender’s prior record.”); see
§ 921.231(1)(m) (mandating that presentence investigation report
include, among other things, explanation of the offender’s criminal
record and offender’s explanation of prior offenses); § 948.015
(same PSI contents for non-state-prison sanctions). We must
respect the validity of these sentencing factors and the proper
exercise of judicial discretion.




                                25
                    (B) Contextual Analysis

    1. Precedential Support

     Given our competing obligations to protect constitutional
rights and to allow sentencing judges to consider appropriate
factors, we must apply a contextual analysis to determine whether
impermissible punishment has occurred. As we have held
previously, a sentencing court’s mere use of the words “remorse”
or “responsibility” is not per-se reversible error:

         While it is fundamental error to punish a defendant
    for exercising his or her constitutional rights, we decline
    to hold that any mention by a sentencing judge of a
    defendant’s claim of innocence or failure to “take
    responsibility”     during    a     sentencing     hearing
    automatically renders the sentence an infringement of
    the defendant’s constitutional right to maintain one’s
    innocence.

Hayes v. State, 

, 252 (Fla. 1st DCA 2014); see also
Burr v. Pollard, 

, 832 (7th Cir. 2008) (“[T]he
constitution is not violated by a mere slip of the tongue.”).

     In Hayes, factually similar to this case, we concluded that the
sentencing judge did not base the sentence on impermissible
factors where, after stating multiple times that the defendant
failed to take responsibility or show remorse despite the jury’s
guilty verdict, the court expressly denied punishing the defendant
for maintaining his innocence, and imposed a guidelines sentence
with a mandatory minimum. 150 So. 3d at 250–52. We noted that
the court’s comments were in the context of reviewing the
defendant’s extensive criminal history and pattern of violations.
Id. In doing so, we necessarily evaluated the trial court’s comments
in their larger context.

    Rather than reverse a sentence reflexively if the sentencing
judge speaks ambiguous buzz words, we must evaluate sentencing
comments fairly and reasonably, with a thoughtful fact-specific
and contextual inquiry that is sensitive to both the defendant’s
constitutional rights and the trial court’s authority and discretion

                                26
in sentencing. A reasoned analytical approach to the issue is
feasible, promotes clarity and uniformity, and is frequently
performed already. E.g., Oliver v. State, 

, 615-16
(Fla. 2017) (considering context of prosecutor’s comments on lack
of remorse, the brevity of the reference, and the unlikelihood that
the single comment affected the outcome); Catledge v. State, 

, 940-41 (Fla. 1st DCA 2018) (considering context to
determine that comments related to mitigation); Burns, 

 at *2 (noting necessity of reviewing sentencing comments
in context); Allen v. State, 

, 52 (Fla. 4th DCA 2017)
(setting forth several contextual considerations guiding the court’s
analysis of “whether appellant’s sentence was improperly
influenced by his failure to admit guilt”); Godwin v. State, 

 497, 498 (Fla. 2d DCA 2015) (evaluating comments in context
to conclude they properly related to mitigation); Torres v. State,

, 442 (Fla. 1st DCA 2013) (considering context as
indicating sentence was based at least in part on impermissible
factors and court could not conclude the sentence would be the
same regardless); Aliyev v. State, 

, 1235 (Fla. 4th
DCA 2003) (evaluating context of judge’s comment about
defendant’s courtroom outburst to determine whether it referred
to improper factor, and concluding there was no error especially
where sentence was lenient); Harden v. State, 

, 317
(Fla. 4th DCA 1983) (interpreting court’s comments as “clearly”
referring to defendant’s failure to confess); see also United States
v. Espinoza, 550 F. App’x 690, 695 (11th Cir. 2013) (quoting United
States v. Webb, 

, 1394–95 (11th Cir. 1998), as
interpreting sentencing judge’s ambiguous comments according to
the rationale “more strongly” suggested by the record).

    2. Applying Contextual Analysis

     The cases already cited, and many similar to them, embody
the principle that we must look beyond mere words spoken, and
evaluate the context to determine whether the words evidence an
improper reliance on the exercise of constitutionally-protected
rights. In this regard, courts need to be clear about their verbs:
“consideration of” and “reliance on” are not the same thing. It is
only a punitive reliance on improper factors in sentencing that is
improper. We must evaluate the context to determine whether a


                                27
sentencing judge relied on an improper factor resulting in an
infringement of the defendant’s constitutional rights.

     The Fourth District in Allen articulated an analytical test
specific to the facts of that case, where the trial judge engaged in
a protracted colloquy with the appellant in an express attempt to
extract a confession of guilt as a quid pro quo to imposition of a
more lenient sentence. 211 So. 3d at 51-52. The court considered
first whether the appellant had maintained his innocence after
conviction, how the trial court attempted to elicit an admission of
guilt and the degree of coercion the court used, and whether the
court expressly or impliedly offered a more favorable sentence in
exchange for an admission of guilt or remorse. Id. Examining the
context, the court concluded that the trial judge improperly relied
on the appellant’s “unrelenting insistence of innocence” in
determining the sentence. Id. at 52.

     The judge’s comments here are quite different from those in
Hayes and Allen. The contextual lead-in to the sentencing
comments begins with the PSI’s long list of prior convictions and
recommendation of a harsh sentence because of the obvious
ineffectiveness of leniency and the likelihood of recidivism. This is
followed by counsel’s handing Appellant’s scoresheet to the judge,
and both counsel then describing the scoresheet as involving a
lengthy “history” of violent crime and firearms offenses. One can
readily envision that the trial judge was quite literally holding up
the scoresheet as he addressed Appellant with reference to his
“history”; but we need not be in the courtroom or have a video of
the sentencing hearing to conclude, entirely reasonably and
without presuming that the trial judge intentionally or negligently
relied on an improper sentencing factor, that this judge was
commenting on Appellant’s criminal history and his lawless
character—valid sentencing considerations in the view of every
judge on this Court. The comments at issue occurred after the
judge’s consideration of Appellant’s PSI, CPC scoresheet, and
emphasis on Appellant’s criminal history by both the prosecutor
and defense counsel. With that context, the judge observed that
Appellant still failed to take responsibility for his actions, and in
light of his criminal history and failure to take any responsibility,
the nature of this crime, and the fact that it involved a firearm, the


                                 28
judge imposed a legal sentence, the maximum permitted under the
guidelines.

     The judge engaged in no quid-pro-quo attempt to extract a
confession of guilt as in Allen. The judge’s use of the word
“responsibility” was not a feature of the sentencing hearing, but
was a brief summation of valid sentencing factors that had just
been addressed in writing and in oral comments. The judge’s
comments were tied to valid sentencing factors—Appellant’s past
criminal record, his undeniable awareness that he was not
permitted to possess a gun, and his apparent failure to exert any
effort to live a life free from crime. The sentence imposed was a
legal sentence, consistent with the recommendation in the PSI,
and consistent with the sentence that the State recommended.
Overall, this context more strongly suggests that the trial judge’s
reference to Appellant’s “responsibility” related to exactly what the
documents and argument of both counsel had emphasized:
Appellant’s significant past criminal history.

     There was no objection to the trial judge’s comments, and no
request for clarification in light of Appellant’s constitutional
rights, which one would expect to hear immediately from a lawyer
whose client’s constitutional rights were being infringed. This
issue was not even raised in Appellant’s motion for new trial. If
those present in the room at sentencing, who could see and hear
the words and the intonation and the body language, thought the
trial judge was punishing Appellant’s exercise of constitutional
rights, one would think that defense counsel at a minimum, and
perhaps also counsel for the State, would raise the issue
immediately. One would hope that defense counsel would not
stand idly by in the hopes of turning error into an appeal issue and
securing resentencing before a more favorable judge. Cf. Calloway
v. State, 

, 896-97 (Fla. 1st DCA) (refusing to promote
“bizarre incentive” where defense counsel’s failure to object to
erroneous jury instruction is rewarded with a new trial), review
denied, 

 (Fla. 2010). I would not hold that counsel is
required to expressly assert that the defendant is exercising
constitutional rights, or to object to seemingly improper sentencing
comments, to preserve the issue for appeal. I merely observe that
in some cases it would be very helpful in distinguishing between
character issues and the assertion of constitutional rights, and

                                 29
often might eliminate this issue on appeal. In this case the lack of
objection means the trial judge was given no opportunity to
address the issues we now address on appeal.

     We should not interpret the trial judge’s comments as rigidly
as if we were interpreting a contract or statute. The flaw in such
an interpretive approach is that it places too much grammatical
and legal significance on extemporaneous oral comments. The
hearing transcript is not a polished legal contract or a thoroughly-
vetted statutory provision. Nevertheless, the dissenting opinions
argue that the use of “still” in “You still fail to take any
responsibility for your actions” can only be a present-crime
reference to a refusal to admit guilt. To the contrary, the more
plausible interpretation in context is that the trial judge used the
word “still” to reflect the truth that despite a lengthy felony history
and the accompanying unavoidable knowledge that he could not
legally be in possession of a gun, Appellant had just been convicted
of exactly that crime and was continuing a general life of crime. In
other words, the “still” was a temporal link between Appellant’s
prior criminal history and the new conviction; it did not punish
Appellant for maintaining his innocence.

     The dissents further interpret the trial judge’s next two
comments as if they presumptively violated the constitution. The
trial judge spoke two phrases in succession, separated by a comma:
“your history here [comma]” followed by “your failure to take any
responsibility.” In their view, the comma between the phrases
means the two phrases must be interpreted as referring to two
different things: “your history here” referring to past convictions,
thus negating any possibility that the following phrase, “your
failure to take any responsibility,” could refer to the same thing.
To the contrary, we cannot assume the judge intended two
different things any more than we can assume he intended to
violate Appellant’s constitutional rights. In context, it is more
reasonable to conclude that the judge was repeating or rephrasing
the same consideration for emphasis or for further explanation, as
in “[Y]our history here [referring to the PSI and CPC scoresheet]
shows me you are not shouldering the responsibility of living a life
free of crime.” The trial judge had just reviewed Appellant’s prior
felonies, and the “responsibility” comment was made in light of
Appellant’s obvious knowledge of his status as a convicted felon.

                                  30
This was a proper sentencing consideration. See §§ 921.002(1)(d),
921.231(1)(m), Fla. Stat. It was a single, brief, passing comment
not tied to any attempt to extract a confession in exchange for a
lighter sentence. It did not punish Appellant for asserting a
constitutional right in connection with the crime of conviction. We
should not be so eager to assume the worst of a sentencing judge.

                          III. Conclusion

     In closing, I add that this issue arises in a context where it can
occur unobserved. Judges can rely on improper factors in
sentencing, and hide that fact by not saying so out loud. Of course,
the issue would not arise if sentencing judges would not say
“responsibility” or “remorse” without also elaborating in detail that
they are not improperly relying on a defendant’s exercising
constitutional rights in connection with the crime of conviction.
But a sentence could be improper without the problematic words’
having been spoken; and a sentence can be proper even when the
words are spoken. Further, a judicial “explanation” or “disclaimer”
of comments that otherwise clearly punish a defendant’s exercise
of constitutional rights may be insufficient to cure a constitutional
violation. Sentencing judges must consider their sentencing
comments thoughtfully and with every intention of avoiding a
constitutional violation. Counsel should make it very clear to
sentencing judges where appropriate that defendants are
exercising their constitutional rights; and if necessary, object and
request clarification if sentencing remarks appear to be going
astray.

LEWIS, J., concurring in part and dissenting in part.

     I concur in the majority’s affirmance of Appellant’s conviction.
I respectfully dissent, however, from the majority’s affirmance of
Appellant’s sentence. Unlike the majority, I see no need or
justifiable basis to recede from our well-established case law
holding that a trial court may not consider a defendant’s failure to
take responsibility or to show remorse when imposing a sentence
and to create conflict with other Florida appellate courts on this
issue. Because the trial court expressly stated that it considered
Appellant’s failure to take responsibility when sentencing him,


                                  31
Appellant’s sentence should be vacated and the case remanded for
resentencing before a different judge.

     While I agree that a contextual analysis is appropriate in
determining whether a trial court considered an improper
sentencing factor, such an analysis in this case can lead only to the
conclusion that such a factor was considered. It is undisputed that
the trial court placed a great deal of emphasis on Appellant’s
violent history, which it was clearly permitted to do. However,
what the trial court said after discussing Appellant’s history
should be our main focus in this case, especially given the fact that
Appellant stated during the sentencing hearing, “If I did anything
wrong, or said anything that’s inappropriate, I would apologize.
Right now . . . I would be asking for leniency, but I did nothing
wrong. I am not guilty of the charge that I’m accused of. I am
innocent.” The trial court later stated:

         You still fail to take any responsibility for your
    actions. And considering your history here, your failure
    to take any responsibility, the nature of the crime, the fact
    that it involves a firearm, the Court will sentence you to
    15 years in the Department of Corrections, which is the
    statutory maximum.

(Emphasis added).

     It is abundantly clear based on the words the court spoke that
it considered Appellant’s failure to take responsibility in
sentencing him. To find otherwise ignores not only the court’s
words but also this Court’s well-established case law on the issue.
We have held that “[a] lack of remorse or a failure to accept
responsibility may not be considered by the trial court when
fashioning an appropriate sentence.” Dumas v. State, 

, 1048 (Fla. 1st DCA 2013) (emphasis added); see also Macan
v. State, 

, 553 (Fla. 1st DCA 2015) (“Although the
mere mention of a defendant’s ‘claim of innocence or failure to take
responsibility during a sentencing hearing’ will not necessarily
rise to the level of fundamental error . . . where a ‘statement made
by the trial court can reasonably be read only as conditioning the
sentence, at least in part, upon appellant’s claim of innocence,’
fundamental error occurs.” (citation omitted)); Hayes v. State, 

, 251 (Fla. 1st DCA 2014) (“[I]t is well settled that a trial
                                  32
court’s remarks during sentencing which show reliance on
constitutionally impermissible factors to support the severity of
the sentence can constitute a denial of the defendant’s due process
rights and thus constitute fundamental error which may be raised
for the first time on appeal.”); Adkison v. State, 

, 607
(Fla. 1st DCA 2014) (affirming the appellant’s convictions, but
vacating his sentences and remanding for resentencing before a
different judge because the trial court’s oral pronouncement “‘can
be reasonably read only as conditioning the sentence, at least in
part, on Appellant’s lack of remorse and claim of innocence, which
is a violation of [his] due process rights’” (citation omitted)). Other
Florida courts have similarly held. See James v. State, 4D18-2151,

, at *3 (Fla. 4th DCA Feb. 20, 2019) (explaining
that while a sentencing court has wide discretion as to the factors
it may consider in imposing a sentence, it is constitutionally
impermissible for it to consider the fact that a defendant continues
to maintain his innocence and is unwilling to admit guilt and
reversing the appellant’s sentence where the trial court stated
during sentencing that it did not sound like the appellant had
taken any responsibility and noted that defense counsel
represented on the appellant’s behalf that he did not commit the
crime to which he pled); Johnson v. State, 

, 1017
(Fla. 3d DCA 2007) (holding that a criminal defendant has the
right to maintain his or her innocence and that a trial court may
not hold a defendant’s protestation of innocence against the
defendant).

     It is true that this Court in Hayes declined to hold that any
mention by a sentencing judge of a defendant’s claim of innocence
or failure to take responsibility during a sentencing hearing
automatically renders the sentence an infringement of the
defendant’s constitutional right to maintain one’s innocence. 150
So. 3d at 252. However, we also explained:

    The trial court specifically stated that Appellant was not
    being punished for maintaining his innocence, in
    response to a suggestion by defense counsel that such
    punishment would be illegal. Although the trial court
    surmised that Appellant maintained his innocence for
    appellate reasons and the possibility of future re-trials,
    and observed that Appellant had not shown any remorse

                                  33
    or taken responsibility for ‘what he has done’ over his
    lengthy criminal history, the court discounted these
    factors as affecting the sentence by stating immediately
    thereafter: “But be that as it may, Mr. Hayes is an
    habitual felony offender.”      The transcript of the
    sentencing hearing in this case does not give rise to a
    presumption that the sentence was imposed as a
    punishment for Appellant’s exercise of his constitutional
    rights.

Id. (emphasis in original).

     Had the trial court in this case merely said in passing as it
was discussing Appellant’s violent history that “you still fail to
take responsibility for your actions” and proceeded to expressly
base the sentence on Appellant’s history, the nature of the crime,
and the fact that it involved a firearm, Hayes might support
affirmance. In that scenario, a contextual analysis could lead to
the conclusion that the court did not base the sentence on an
improper sentencing consideration. Yet, that is not the situation
that we have before us. Not only did the trial court make the
“failure to take responsibility” comment, it then immediately
included that factor in the list of factors it considered in sentencing
Appellant. When looking at the list in context, it is telling that
Appellant’s failure to take responsibility was not the last factor
mentioned. Indeed, it was the second factor listed, preceded only
by a consideration of Appellant’s criminal history. This is not
surprising given the court’s strong focus on Appellant’s history.

     Moreover, the trial court’s statement about taking
responsibility was not merely a comment on Appellant’s life-long
history of crime in general and gun crimes in particular. The trial
court instead listed Appellant’s failure to take responsibility in
addition to his criminal history, the nature of the crime, and the
fact that it involved a firearm. Judge Kelsey, in choosing not to
construe the trial court’s language as if she were analyzing a
statute or written contract, believes that looking at the trial court’s
stated reasons for the sentence places too much grammatical and
legal significance on extemporaneous oral comments given that
the hearing transcript is not a polished legal contract or
thoroughly-vetted statutory provision. This, in my opinion, does

                                  34
nothing more than show how strained such an interpretation of
the trial court’s statements is. Contrary to Judge Kelsey’s claim
that we cannot assume that the trial court intended two different
things when it stated, “your history here, your failure to take any
responsibility,” we do not have to assume anything in this case.
The trial court’s words tell us all we need to know. We are not in
the business of removing punctuation marks from trial transcripts
in order to construe the oral comments made by trial courts. Nor
are we in the business of saying that a trial court did not mean
what it actually said.

     Furthermore, to conclude that the responsibility comment
was made in light of Appellant’s obvious knowledge of his status
as a convicted felon attributes to the trial court an intent that is
completely at odds with the intent reflected by the court’s own
words. As for the contention that the trial court’s responsibility
comment had nothing to do with the crime of conviction, the trial
court made the statement “[y]ou still fail to take any responsibility
for your actions.” The use of the word “still” can only reasonably
be construed to mean that the court considered Appellant’s present
failure to take responsibility. This is particularly true given
Appellant’s claim of innocence during the sentencing hearing.

     Because the trial court’s own words in this case leave no doubt
that it improperly considered Appellant’s failure to take
responsibility, especially in light of Appellant’s claim of innocence,
Appellant’s sentence should be vacated and the case remanded for
resentencing before a different judge. I concur, however, in the
decision to certify a question to the Florida Supreme Court given
the important issues this case presents.

WETHERELL, J., concurring in part and dissenting in part.

     I concur in the decision to affirm the denial of Appellant’s
motion for new trial, but I respectfully dissent from the decision to
affirm his sentence.

    I agree with Judge Kelsey that a contextual analysis is
required when evaluating whether a defendant’s sentence was




                                 35
impermissibly based on his protestation of innocence. 1 However, I
come to a different conclusion than Judge Kelsey in this case
because, like Judges Lewis and Makar, I see no way to interpret
the trial judge’s comment that Appellant “still fail[s] to take any
responsibility for [his] actions” as anything other than a direct
rebuke of Appellant for continuing to protest his innocence at the
sentencing hearing in the face of the evidence presented at trial
and the judge’s view that the jury “got it right.”

     Because the context shows that the trial judge’s comment
about Appellant’s failure to take responsibility was a direct
reference to his protestation of innocence and because Appellant’s
failure to take responsibility was one of the factors specifically
enumerated by the judge as a basis for Appellant’s sentence, it
follows that Appellant’s punishment in this case was based at least
in part on his protestation of innocence. This is a due process
violation. See Holton v. State, 

, 292 (Fla. 1990)
(“[D]ue process guarantees an individual the right to maintain
innocence even when faced with evidence of overwhelming guilt.
A trial court violates due process by using a protestation of
innocence against a defendant.”). Accordingly, resentencing is
required.

MAKAR, J., concurring in part, dissenting in part.

    Overturning thirty years of precedent and creating conflict
with all other Florida appellate courts, a bare majority of this


    1   I also agree with Judge Kelsey that Florida Supreme Court
precedent precludes this court from adopting the new rule
embraced by the majority opinion, but because reasonable judges
can (and obviously do) disagree on this point, I join in the
certification of a question to the Florida Supreme Court in order to
give the Court an opportunity to clarify (or reconsider) its case law
on the issue and decide whether all of the district courts prior to
this case had unjustifiably expanded (or merely followed) the
Court’s precedent by holding that the trial court may not base a
defendant’s sentence on his protestation of innocence, lack of
remorse, failure to take responsibility, or the like.


                                 36
Court enfeebles what for decades has been an easily administered
bright-line sentencing rule for Florida judges: do not punish—or
appear to punish—a defendant who maintains his innocence for a
perceived lack of remorse or the failure to take responsibility or
accept guilt for the crime proven. Resentencing is required if a trial
judge’s comments can reasonably appear to suggest that a criminal
sentence was based, even in part, on these impermissible factors.
This prudent, efficient and battle-tested rule has proven its mettle,
yet it is discarded today for no good reason.

     This constitutionally-derived rule—applied by our supreme
court and every district court in Florida for a generation—has two
primary justifications: due process and judicial administration.
The former’s focus is prophylactic, according space for a
defendant’s exercise of his constitutional rights to a fair trial
(including sentencing) and maintaining innocence or silence. See
U.S. Const. amends. V, VI, & XIV; art. I, §§ 9, 16(a), & 22, Fla.
Const.; see Norvil v. State, 

, 410 (Fla. 2016) (“bright
line rule” adopted to “preserve a defendant's due process rights
during sentencing.”); see generally MICHAEL PROEVE & STEVEN
TUDOR, REMORSE: PSYCHOLOGICAL AND JURISPRUDENTIAL
PERSPECTIVES 154 (2010) (“to treat an absence of remorse as an
aggravating factor will effectively put unacceptable pressure on an
accused person to plead guilty for fear that her plea of not guilty
will (if the verdict is ‘guilty’) be treated as evidence of a lack of
remorse and thereby attract further punishment. Such pressure is
inconsistent with respect for the right to plead not guilty and the
right not to incriminate oneself, which all accused persons enjoy,
regardless of whether they believe themselves to be guilty or not
and regardless of whether they are remorseful or not.”).

     The latter’s focus is on maintaining a bright-line that
prohibits the use of impermissible criteria in the sentencing
process, thereby minimizing the role of appellate courts in divining
trial judges’ motivations by parsing what they say at sentencing.
See, e.g., Norvil, 191 So. 3d at 410 (implementing “bright line rule
for sentencing purposes” that a trial court may not consider an
impermissible sentencing factor). To date, Florida’s bright-line
rule has seemed to work; no hue and cry has rung out statewide to
alter the status quo. Indeed, the State, in its initial brief, made no
argument that the time had come to change course; it admitted

                                 37
error, but argued it was neither fundamental nor harmful. Only a
subset of this Court was unhappy with Florida’s bright line rule,
resulting in this en banc proceeding—not to bring about uniformity
in our cases, which we currently have—but to change the status
quo markedly and unjustifiably.

     To begin, let’s set forth the incontestable. In Florida, an
impermissible sentencing factor is a defendant’s perceived failure
to show remorse or accept responsibility or guilt for the crime
proven: no statutory authority permits it, and Florida appellate
courts uniformly hold it is an improper consideration, even in part,
during the sentencing phase of a non-capital case. See, e.g.,
Jackson v. State, 

, 428 (Fla. 1st DCA 2010)
(fundamental error occurs where a trial court's statement “can
reasonably be read only as conditioning the sentence, at least in
part, upon appellant's claim of innocence”); see also Torres v. State,

, 441 (Fla. 1st DCA 2013) (“A sentence should be
vacated where a trial judge's comments “‘could reasonably be
construed to suggest that the trial judge based [the] sentence, at
least in part,’” on a constitutionally impermissible factor.”)
(citation omitted).

     As our supreme court said almost thirty years ago, due process
is violated where a trial court uses “a protestation of innocence
against a defendant,” Holton v. State, 

, 292 (Fla.
1990), because “due process guarantees an individual the right to
maintain innocence even when faced with evidence of
overwhelming guilt.” Id. (emphasis added); see also Williams v.
State, 

, 305 (Fla. 1st DCA 2012) (reversing for
resentencing where trial court comments “can reasonably be read
as conditioning appellant's sentence, at least in part, on the
veracity of his testimony.”) (citing Holton). Under Florida’s bright-
line sentencing rule, comments as to lack of remorse or failure to
accept responsibility for the crime charged are handled like other
impermissible sentencing factors (such as race or religion), which
generally require resentencing. Torres, 124 So. 3d at 442. Dozens
of cases from this District, and far more statewide, could be string-
cited for these foundational propositions. A recent smattering from
each of our sibling districts demonstrates this point. Strong v.
State, 44 Fla. L. Weekly D184 (Fla. 5th DCA Jan. 4, 2019) (holding
that “the trial judge fundamentally erred when she injected

                                 38
[defendant’s] failure to show remorse as a factor in sentencing”
requiring a “remand for resentencing before a different judge”);
Lawton v. State, 

, 361 (Fla. 3d DCA 2016) (“The trial
court's consideration of remorse . . . constituted an impermissible
factor in imposing its sentence” such that “consideration of
[defendant’s] lack of remorse constituted fundamental error”);
Pehlke v. State, 

, 1037 (Fla. 2d DCA 2016) (“The
State concedes that it was fundamental error for the sentencing
court to consider [defendant’s] failure to demonstrate remorse for
his actions and that the sentence must thus be reversed.”); Davis
v. State, 

, 1160 (Fla. 4th DCA 2014) (“A trial court's
consideration of a defendant's lack of remorse in imposing its
sentence is fundamental error.”).

     Applying the rule here, a plain reading of the sentencing
transcript shows that the trial judge reasonably appears to have
imposed the sentence, in part, on Davis’s failure to take
responsibility for the crime proved (possession of a firearm by a
felon); indeed, a reader of the transcript could easily conclude that
the trial judge imposed the maximum penalty permissible against
Davis because of Davis’s multiple protestations of innocence at
sentencing (“I am not guilty of the charge that I’m accused of. I am
innocent.”). This point is obvious in the trial judge’s stated
rationale, which immediately followed Davis’s declarations of
innocence and occurred during the ultimate pronouncement of
sentence:

    You still fail to take any responsibility for your actions.
    And considering your history here, your failure to take
    any responsibility, the nature of the crime, the fact that
    it involves a firearm, the Court will sentence you to 15
    years in the Department of Corrections, which is the
    statutory maximum.

(Emphasis added). Even the State reads the transcript as being
problematic, agreeing that the italicized comments were
“improper,” but it claims that the trial judge’s “main point of
concern” was Davis’s criminal history and not his lack of remorse.

   But who’s to say that’s the case? The emphasized portions
make clear that Davis’s criminal history (“considering your

                                 39
history”) and Davis’s ongoing lack of remorse (“[y]ou still fail to
take any responsibility for your actions”) (emphasis added) were
separate factors that contributed to the ultimate sentence
imposed. Davis had an extensive criminal history, which is a
statutory factor in sentencing, see § 921.002(1)(d), Fla. Stat. (2019)
(“The severity of the sentence increases with the length and nature
of the offender's prior record.”), but the trial judge emphasized
twice—at the moment of imposition of the sentence—that Davis’s
refusal to accept responsibility (which is not a statutory sentencing
factor) was an independent animating factor in the maximum
sentence he imposed. See Norvil, 191 So. 3d at 409 (Fla. 2016) (trial
judge commented on impermissible factor “[i]mmediately before
pronouncing sentence”). Moreover, the trial court’s statement at
sentencing that he “had heard the evidence” and that “quite
frankly I think [the jury] got it right,” combined with his
insistence—after Davis adamantly maintained his innocence—
that Davis ought to have accepted responsibility, is reasonably
construed to impugn Davis for maintaining silence and not
admitting guilt. Textually, contextually, or even atextually, what
the trial judge said can reasonably be seen as relying, at least in
part, on an impermissible factor in sentencing Davis.

     To conclude that there was nothing wrong with the judge’s
comments and that “nothing in the record” supports “even a hint”
that sentencing was based on an impermissible factor ignores that
the trial judge scolded Davis for his failure to take responsibility
in virtually the same breath with Davis maintaining his innocence;
indeed, the majority opinion scarcely mentions Davis’s vocal
claims of innocence at the sentencing hearing. Why would Davis
accept responsibility when he was adamantly maintaining his
innocence? Wouldn’t that be oxymoronic? Isn’t maintaining
innocence the antithesis of accepting blame? And isn’t “failure to
take responsibility” and “lack of remorse” potentially seen as code
phrases for or synonymous with “failure to accept guilt” under
these circumstances? It makes for bad optics to uphold wayward
sentencing comments of these kind, which can reasonably appear
to affect a criminal defendant’s constitutional right to maintain
innocence and a jury trial. And it strains plausibility to conclude
that the trial judge’s statements are “fairly interpreted” only as a
“comment” on or “observation” of Davis’s prior criminal history.
That’s quite a stretch, particularly when many members of this

                                 40
Court have no difficulty interpreting them quite differently.
Characterizing the trial judge’s statements as “extemporaneous
oral comments” without “legal significance”—as if they were mere
gossamer—overlooks that they were uttered while imposing the
maximum sentence possible. What’s more, to turn on a dime and
imbue these very same comments with deep legal meaning—
interpreting them tautologically as commenting exclusively on
Davis’s criminal history—seems incongruous.

     Even if the trial judge’s comments had dual motives, it is pure
guesswork to say what the trial judge’s “primary” motivation or his
“main point of concern” was at sentencing in this case. The
elegance of Florida’s bright-line rule is that it minimizes the
vagaries of divining on appeal what is unknowable, e.g., what
weight did the trial judge place on the impermissible factor(s) and
was it enough to be prejudicial? If a trial judge has multiple
motives—one of which is impermissible—how is an appellate court
to channel a trial judge’s thoughts to figure out which prevails? It’s
akin to unscrambling a scrambled egg. Plus, what if the trial judge
said:

    You have committed an offense that is inconsistent with
    your Catholic upbringing. And considering your criminal
    history here, your failure to conform to your beliefs, the
    nature of the crime, the fact that it involves a firearm, the
    Court will sentence you to 15 years in the Department of
    Corrections, which is the statutory maximum.

Is there any doubt that resentencing would be required due to the
reference to the impermissible factor of religion or perceived lack
of religious adherence, even though the trial judge also mentioned
the defendant’s “criminal history” in imposing the statutory
maximum? Torres, 124 So. 3d at 440-41 (resentencing required
where trial judge said during sentencing that “You're a good
Catholic fellow as I am. That's not the way Catholic people—that's
not the way anybody with morals should do anything.”) (italics
removed). No sliding-scale of “impermissibility” exists to
distinguish between improper comments that reasonably appear
to suggest reliance on religion and those based on the right to
maintain innocence and not accept guilty or responsibility; both


                                 41
are impermissible and neither arises in plea deals, which have no
apparent relevance to the matter at hand. 1

    Simply said, Florida’s venerable bright-line sentencing rule—
which is readily applied by trial and appellate judges—isn’t broken
and doesn’t need an unprompted, precipitous judicial fix.

     So why has a majority of this Court decided to abandon
Florida’s bright-line test, overturn dozens of our precedents, and
create conflict with every other district (and probably our supreme
court)? Why change course and impose a new federal-esque

    1    The majority’s discussion of plea bargaining, which is
somewhat mystifying in a non-plea bargain case, actually
undermines its position. A defendant who chooses not to maintain
his innocence by entering a plea bargain does so voluntarily, giving
up constitutional rights in the process. Davis, however, chose to
exercise his right to a jury trial and to maintain his innocence
through trial and sentencing, giving up no constitutional rights.
Even if he had rejected a plea deal as the majority seems to hint
(the record does not speak to one), how could that possibly matter
thereafter? His continued exercise of his constitutional rights is all
that matters. It can’t be that a trial judge has greater latitude to
comment or act upon a lack of remorse or refusal to accept guilt
where a plea bargain is rejected; indeed, the specter of vindictive
sentencing looms in such cases. See, e.g., Cavallaro v. State, 

, 1006–07 (Fla. 3d DCA 1994) (“party's decision to go to
trial rather than accept a plea bargain is not punishable by the
imposition of a harsher sentence as to do so would impinge on the
constitutional right to trial by jury.”); Pasley v. State, 

, 1168 (Fla. 4th DCA 1990) (“No extended citation of authority
is necessary to show that the court may not punish a defendant for
going to trial as opposed to ‘pleading out.’”); see generally Kurtis A.
Kemper, Propriety of Sentencing Judge's Imposition of Harsher
Sentence than Offered in Connection with Plea Bargain Rejected
or Withdrawn Plea by Defendant—State Cases, 

(2019) (collecting and analyzing state cases where “a judge
improperly imposed a sentence that was harsher than that offered
in a plea bargain that was rejected or withdrawn by the
defendant.”).

                                  42
sentencing policy that empowers trial judges to vocalize and rely
upon a defendant’s failure to accept responsibility or lack of
remorse for sentencing purposes, even in cases—like this one—
where a defendant adamantly maintains his innocence at
sentencing? No one has asked us to upset the apple cart and
jettison the well-established and non-controversial approach taken
by every court in this state in the modern era. What’s changed to
justify this dramatic shift, one that now permits the use of what
has been an impermissible sentencing criterion in Florida thereby
undermining a defendant’s constitutional right to maintain his
innocence? One has to search hard for a justifiable rationale. At
best, the central thesis of Judge Winsor’s opinion, that Florida
appellate courts have strayed from original sentencing principles
over the past thirty years, is itself far off-base because it
principally relies on a false comparison between Florida’s
sentencing laws and federal and other states’ sentencing laws, the
latter having little to do with sentencing standards and principles
in Florida, whose sentencing statute does not allow punishment
for a defendant’s lack of remorse. To adopt his change in
sentencing policy requires judicial rewriting of Florida’s
sentencing statute, jettisoning well-established caselaw, and
importing the substantive law of federal/other states’ standards
into Florida’s sentencing process. For what end? To permit judicial
comment on and punishment for a lack of remorse/responsibility,
which we—as a court—have no authority to adopt via judicial fiat;
only the legislature can make such an epic shift in Florida
sentencing policy.

     Paradoxically, the majority embraces a patchwork of
primarily federal cases with a hodgepodge of state cases
supporting its view as if Florida courts should reflexively deem
them as superior in kind to what our legislature and state judiciary
have thoughtfully developed and implemented over the past
decades. But, what principle of state judicial power says, “Fed is
Best—Chuck State Law,” where the Supremacy Clause is not in
play? State sovereignty is undermined when state courts diminish
or discount their own laws by mechanically “lockstepping” with
federal precedent, even more so when the federal and state laws
are textually different as is the case here. See JEFFREY S. SUTTON,
51 IMPERFECT SOLUTIONS: STATE AND THE MAKING OF AMERICAN
CONSTITUTIONAL LAW 173-90 (Oxford University Press 2018)

                                43
(“There will never be a healthy ‘discourse’ between state and
federal judges about the meaning of core guarantees in our
American constitutions if the state judges merely take sides on the
federal debates and federal authorities, as opposed to marshalling
the distinct state texts and histories and drawing their own
conclusions from them.”) (footnote omitted). The same principle is
true as to other state’s laws; why follow them rather than our
organic laws in Florida.

     Plus, who’s to say that Florida’s prophylactic bright-line rule
isn’t the superior approach, not only to the federal cases but other
states’ sentencing laws as well? Isn’t it better, at the margin, to
ensure the protection of due process and the constitutional rights
to jury trial and maintaining innocence/silence with a simple
administrative rule rather than banish the rule’s prophylactic
purpose to the trash heap, increasing the risk that impermissible
sentencing factors are considered? Keep in mind that Florida’s
bright-line rule only says that resentencing is needed where a trial
judge’s comments reasonably appear to suggest consideration of an
impermissible sentencing factor; the rule is not a “blanket, judge-
made” bludgeon that always requires resentencing. We, as a court,
have already plowed this ground and held that resentencing is not
required simply because a trial court mentions such a factor. Hayes
v. State, 

, 252 (Fla. 1st DCA 2014) (trial court’s
comments, coupled with it “specifically stat[ing] that Appellant
was not being punished for maintaining his innocence,” held to
not establish grounds for resentencing). Laid bare, nothing
justifies departure from precedent other than the will of the
majority to impose other jurisdictions’ substantive sentencing laws
on a state system whose legislature has chosen not to do so and
whose judiciary statewide has been in uniform equilibrium on the
topic for decades.

     Like most legal doctrines, Florida’s bright-line rule has
exceptions, the primary one being where the Legislature has
specifically permitted consideration of remorse. For example, the
Florida Legislature has determined that a trial judge may decide
that remorse has been sufficiently shown and that leniency is
warranted in limited circumstances. See, e.g., § 921.0026(2)(j), Fla.
Stat. (2019) (mitigation is permissible where the “offense was
committed in an unsophisticated manner and was an isolated

                                 44
incident for which the defendant has shown remorse.”) (emphasis
added). Thus, where a defendant seeks leniency and puts the
authenticity of his remorse into question, the “trial court may
properly consider whether a defendant is remorseful when
determining whether or not to mitigate a sentence.”). Catledge v.
State, 

, 940-41 (Fla. 1st DCA 2018) (emphasis
added); see also State v. Sachs, 

, 51 (Fla. 1988)
(“Although constitutional considerations generally mean that lack
of remorse cannot constitute a valid reason for an upward
departure, we conclude that clear and convincing evidence of
actual remorse also may constitute a valid reason for a downward
departure.”) (footnote omitted). In Catledge, the defendant
apologized and sought mitigation of his sentence, thereby
subjecting his professed remorse to judicial scrutiny. In upholding
the trial judge’s comments as to defendant’s lack of remorse, it was
noted that “there is a critical distinction between instances where
a sentencing court improperly relies on a defendant's lack of
remorse in fashioning its sentence, and instances where a
sentencing court properly relies on a defendant's lack of remorse in
the context of mitigation.” Id. at 941. See also Shepard v. State, 

, 749 (Fla. 1st DCA 2017) (“While remorse and an
admission of guilt may be grounds for mitigation of a sentence, the
lack of these factors cannot be used to increase a defendant's
sentence and such reliance violates the defendant's due process
rights.”), approved on other grounds, 

 (Fla. 2018);
Lawton, 

 at 361 (“Consideration of remorse . . . is
appropriate where a defendant injects rehabilitation into the case
as remorse is part of rehabilitation.”); Ritter v. State, 

, 414 (Fla. 1st DCA 2004) (“Although remorse and an admission
of guilt may be grounds for mitigation of sentence, the opposite is
not true. . . . Reliance on these impermissible factors violates the
defendant's due process rights.”) (citation omitted).

     The exception that allows remorse to be considered in
mitigation of a sentence does not swallow or undermine the rule.
Statutory and sentencing asymmetry is permissible. Just because
the legislature says remorse may be used in doling out leniency in
some situations doesn’t mean the opposite is condoned, i.e., that a
lack of remorse or failure to accept guilt is a permissible sentencing
factor. Quite the opposite. The primary focus of Florida’s Criminal
Punishment Code is on punishment. See § 921.002, Fla. Stat.

                                 45
(2019) (“The primary purpose of sentencing is to punish the
offender. Rehabilitation is a desired goal of the criminal justice
system but is subordinate to the goal of punishment.”). It does not
include a lack of remorse as a basis for increased punishment; and
its inclusion is a job best left to the Legislature. Id. § 921.002(1)
(“The provision of criminal penalties and of limitations upon the
application of such penalties is a matter of predominantly
substantive law and, as such, is a matter properly addressed by the
Legislature.”) (emphasis added).

      To affirm this principle of judicial restraint and statutory
construction, one needs to look no further than our supreme court’s
decision in Norvil, which held that Florida’s criminal punishment
code’s inclusion of prior arrests as a factor to consider in imposition
of sentence precluded consideration of subsequent arrests because
“if the Legislature had intended to include subsequent arrests and
their related charges as permissible sentencing factors, it would
have done so.” 191 So. 3d at 409. The legislature has included
remorse only as a basis for showing leniency, so where do we get
the authority to rewrite the criminal punishment code to make it
a permissible factor for trial judges to voice and bring into play
other than in that limited context? Sentencing on objective factors
is difficult enough without judicially injecting a subjective, non-
statutory, and emotion-laden factor into the process; persons found
guilty of a crime can be sentenced on what they did and the harm
they caused to victims (objective factors) versus the perceived lack
of an emotion or affect at sentencing (subjective factor). If Florida’s
Legislature wants to adopt a laxer approach—and gravitate
toward a sentencing standard some federal and state courts use—
that is its sole prerogative under separation of powers principles;
we have no business tinkering in this field and imposing our policy
preferences when the Legislature has explicitly said this is its turf
alone.

     Beyond confusion within the District and bewilderment
beyond, the majority’s newfound sentencing regime muddles the
line of what’s acceptable judicial commentary. The majority’s
explicit holding is “that lack of remorse and refusal to accept
responsibility can be valid sentencing considerations when
sentencing within the statutory range,” which presumably means
that trial judges may now actively comment on an innocence-

                                  46
professing defendant’s perceived refusal to accept responsibility
for the crime charged and proven without fear of reversal. Phrases
such as “You fail to take responsibility” or “You fail to show
remorse” are given the green light even though they can easily be
seen as rebuking defendants who have exercised their
constitutional right “to maintain innocence even when faced with
evidence of overwhelming guilt.” Holton, 

 at 292. Unclear
is whether any remedy remains for other than the most obvious
and reprehensible acts, such as where a trial judge openly
disparages and punishes a defendant for maintaining innocence
and exercising the right to a jury trial (aka actual vindictiveness).
The answer, apparently, is a new bright-line test: only the most
egregious or palpable constitutional transgressions warrant relief.
This divergence from precedent is unwise and unnecessary where
the apparent effect of doing so is to normalize and thereby validate
sentencing errors arising from wayward comments about a
defendant’s failure to show remorse, guilt, or accept responsibility,
particularly in cases—like this one—where defendants profess
their innocence at sentencing.

     No one advocates for knee-jerk, buzz-word based reversals—
no cited case or opinion expresses that viewpoint. Yet the majority
fashions a straw man, saying that it “can no longer embrace the
blanket, judge-made rule” that a lack of remorse or a failure to
accept responsibility may not be considered at sentencing, citing
Dumas v. State, 

, 1048 (Fla. 1st DCA 2013).
Begging one’s pardon, but no contemporary Florida court has said
that trial courts may not consider a lack of remorse/responsibility
in sentencing; it is permitted where a defendant seeks leniency and
where authorized by statute. And Florida’s bright line rule only
says that resentencing is necessary if comments by a trial judge
can reasonably appear to suggest that imposition of sentence was
based, if only in part, on maintaining innocence or exercising a
constitutional right. See, e.g., Dumas, 134 So. 3d at 1048) (“The
court's statement can reasonably be read only as conditioning the
sentence, at least in part, on [Dumas’s] lack of remorse and claim
of innocence, which is a violation of [Dumas’s] due process rights.”).
What had been potentially impermissible factors are now
presumptively permissible factors in cases where defendants
exercise their right to maintain innocence or to remain silent. And
the majority’s example, that a trial judge can impose a maximum

                                 47
sentence on an innocence-professing defendant, yet say he’d have
shown leniency if the defendant had shown remorse, proves how
the new sentencing regime can be used to extract or pressure
defendant’s to give up these constitutional rights (i.e., if a judge’s
policy is to require remorse for leniency, even the innocent may
feel compelled to capitulate). See PROEVE & TUDOR, supra at 154;
see, e.g., Green v. State, 

, 1172 (Fla. 3d DCA 2012)
(“When a defendant chooses to remain silent at a sentencing
hearing, and the trial court regards this silence as a lack of
remorse or a failure to accept responsibility, it causes an
impermissible chilling effect upon a defendant's due process rights,
and cannot serve as a constitutionally permissible sentencing
consideration.”). 2

     Weakening and shifting away from Florida’s bright-line
sentencing rule is also bad judicial policy. We are the branch of
government least able to study and decide on our own accord what
substantive sentencing policy ought to be as to the complex psycho-
social matters at issue. The emotion of remorse and its relatives
(such as guilt, regret and shame) are not synonymous and are not
fully understood in the legal setting. They are extraordinarily
complex human emotions with very different, nuanced meanings
and diverse implications including different substantive situations

    2   As the Third Districted noted in Green:

    A defendant would face a Hobson's choice between his
    right to remain silent (thus maintaining his innocence
    and preserving, as a practical matter, his appellate
    rights) and his right to allocution at sentencing. A
    defendant who chooses silence at sentencing risks the
    possibility of an increased sentence should the trial
    court find such silence is evidence of a failure to express
    remorse or accept responsibility. A defendant who
    chooses to speak at sentencing and attempts
    simultaneously to express remorse while maintaining
    his innocence, does so at the risk that the trial judge will
    find such expressions of remorse insincere, exposing a
    defendant to the possibility of a harsher sentence.

84 So. 2d at 1172 (footnote omitted).
                                 48
(such as those involving different cultures or persons with
intellectual impairments, mental disorders, or immaturity) that
defy pat or singular legal categorization. Bryan H. Ward,
Sentencing Without Remorse, 38 LOY. U. CHI. L.J. 131, 134 (2006)
(the definitional “issue becomes even more complicated,
irrespective of the definition chosen, due to several factors which
inherently make it more difficult to assess the presence or absence
of remorse: subjectivity, deception, cultural values, developmental
limitations, and psychological problems.”). Each can be feigned,
and thereby defy accurate identification, particularly outside a
clinical setting. See HANNAH MASLEN, REMORSE, PENAL THEORY
AND SENTENCING 8-11 (2017) (distinguishing shame, guilt and
regret from remorse and attempting to clarify a definition of
remorse to apply in assessing penal theory); PROEVE & TUDOR,
supra (discussing remorse and its related emotions from a
psychological approach); RICHARD WEISMAN, SHOWING REMORSE:
LAW AND SOCIAL CONTROL OF EMOTION 131-32 (2014) (observing
that “it is the very power of this characterization as remorseful or
remorseless to humanize or dehumanize the wrongdoer that casts
suspicion on its public expression. . . . we demand from the
wrongdoer that it is the stirrings of conscience and not fear of
consequences that prompted his or her feelings of self-
condemnation.”).

     Given the problem of accurate identification, the likelihood of
mistaking one emotion—or, more importantly, the lack thereof—
for another is exceptionally high, making it even more important
for judges to avoid the appearance that sentencing is based, even
in part, on a perceived lack of remorse or acceptance of
responsibility or guilt. As Florida’s jurisprudence reflects, the risk
of constitutional error is significant if a defendant who exercises
his right to maintain his innocence, to deny guilt, or to not testify
can be sentenced based on the appearance that he has failed to
take responsibility or adequately shown remorse, shame or regret
for his actions.

    These emotions are part of human nature and can play
important roles in the criminal justice system, particularly in
downward departures at sentencing based on a defendant’s
perceived shame, regret, and acceptance of guilt. But, they also
play a role in the minds of judges and jurors who have been

                                 49
acculturated via the news, popular culture, and the like, as to the
role of remorse and its absence. PROEVE & TUDOR, supra at 8
(“Remorse is never out of the news for long. Virtually every day a
search of the newspapers will yield stories about remorse,
especially in the context of crime and law reporting. Often enough,
it is the absence of remorse that captures more of the media’s
attention.”).

    A criminal defendant's expressions of remorse or
    remorselessness play a consequential role in the
    sentencing process. Whether a defendant receives a more
    or less severe sentence sometimes depends upon a
    sentencer's assessment of the credibility of the
    defendant's allocution of contrition. This observation is
    not subject to reasonable dispute, although it remains a
    pointed area of disagreement among scholars whether
    remorse or remorselessness should be considered at
    sentencing at all. The lived experience of the courtroom
    in the United States affirms to criminal defendants every
    day that judges and juries “expect him to feel []
    remorseful, ashamed, apologetic, or reformed.” If he does
    not, and the absence of his contrition is detected by the
    sentencer, he can expect to suffer the consequences.

Caleb J. Fountain, Silence and Remorselessness, 81 ALB. L. REV.
267, 267–68 (2018) (footnotes omitted). The expectation that a
criminal defendant must show remorse is culturally ingrained,
making Florida’s bright-line rule a bulwark of sorts against
unconstrained punishment imposed for constitutionally
impermissible factors such as the maintenance of innocence or
choosing silence. A line of demarcation is necessary, particularly
when so little is known about what constitutes actual remorse,
shame, guilt, sorrow and related concepts.

    The failure of remorse is simply the failure of men to be
    able to read the innermost thoughts and feelings of other
    men—an age-old problem which plagues many of
    mankind's interpersonal relationships. No one really
    knows what remorse is—and courts certainly don't seem
    to know it when they see it. Anything that is so
    intrinsically unknowable cannot fairly be the basis for

                                50
    extended (or reduced) periods of incarceration in any
    system of justice.

See Ward, supra, at 167; see also WEISMAN, supra, at 132 (noting
that because the expression of remorse “can lead to a benefit, we
are never fully convinced of its veracity.”). Little common ground
exists among judges, legal scholars, and psychologists on the
definitional parameters of these ostensibly similar words and their
utility in the sentencing process. See Ward, supra, at 131
(“Unfortunately, remorse has proven to be an increasingly
ambiguous concept, which state court judges have had a great deal
of difficulty applying in any coherent or consistent manner.
Rather, reflecting the myriad definitions of remorse, state courts
have found a myriad of reasons to find remorse present or absent,
many of which are illogical at best.”). Given the vagueness and
uncertainty that inheres in a system of punishment based on a
perceived lack of the emotion of remorse, an appellate court should
be cautious in toying with the existing balance, and not throw the
status quo into question, absent the most compelling reason to do
so, which does not exist in this straightforward reliance-on-an-
impermissible-factor-at-sentencing case. See Rocksheng Zhong,
MD, MHS, Judging Remorse, 39 N.Y.U. REV. L. & SOC. CHANGE
133, 172 (2015) (stating that “the use of remorse in criminal justice
judgments still stands on contested ground, particularly with
respect to potential interference with Fifth Amendment rights, the
inconsistency with which judges identify and apply remorse in
their decisions, and the myriad barriers in legal procedure and life
in general (such as mental illness) that can block the expression or
observation of remorse.”).

     All this said, no reason exists to disrupt settled law and instill
disorder in our District. What’s the point? Under current law, if a
trial judge concludes that a defendant’s extensive criminal record
warrants a lengthy sentence, she may do so and say so in words
that do not reasonably appear to be based on an
affectless/remorseless      defendant       who      maintains     his
innocence/silence: our state’s trial judiciary has been thoroughly
schooled on this topic and errors have infrequently arisen as a
result. Trial judges have much discretion to impose stiff sentences
based on objective factors for continual offenders, such as Davis,
without delving into subjective, impermissible factors, such as a

                                  51
lack of remorse or failure to accept responsibility, which courts and
legal scholars have found problematic, particularly in situations—
such as this case—where a defendant maintains his innocence at
sentencing. For all these reasons, overturning precedent as to the
role of remorse or failure to accept responsibility in sentencing a
defendant who maintains his innocence ought to be a subject of
legislative inquiry and reform versus a judicially-led campaign. I
concur as to the new trial issue.

                  _____________________________

Andy Thomas, Public Defender; Steven L. Seliger and Lori A.
Willner, Assistant Public Defenders, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Kaitlin R. Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




                                 52