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December 2, 2021

Split Florida Supreme Court upholds imposition of maximum sentence based in part on defendant's claim of innocence

Via a lengthy divided ruling, the Florida Supreme Court handed down some interesting opinion today in Davis v. Florida, No. SC19-716 (Fla. Dec. 2, 2021) (available here).  Because the various judges fight over how to characterize the case and the ruling, I will just reprint the words of the leading opinions.  First the majority, via Chief Justice Canady:

We accepted jurisdiction to answer the certified question, but because the district court did not pass upon the entirety of the question as framed, we first rephrase it based on the specific circumstances presented by this case: 


We hold that when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant’s freely offered statements, including those indicating a failure to accept responsibility. Thus, we answer the rephrased question in the negative and approve the result in the decision on review.

Now the chief dissent via Justice Polson:

I dissent from the majority’s decision holding that a trial court can punish a defendant for his lack of remorse during a sentencing proceeding.  This result is inconsistent with our precedent interpreting article I, section 9 of the Florida Constitution, the consensus among the district courts of appeal, and has no basis in our statutory sentencing scheme. Showing remorse is admitting you did something wrong — an admission of guilt.  And increasing a defendant’s sentence based on the failure to show remorse is punishing a defendant for failing to admit guilt.  Punishing someone unless they confess guilt of a crime is a violation of due process and the right against self-incrimination.  Accordingly, I would hold that a trial court violates a defendant’s constitutional right to due process and right against self-incrimination where it penalizes a defendant for the failure to admit guilt.

Notably, more two decades ago, the US Supreme Court held Mitchell v. US, 526 U.S. 314 (1999), that it was unconstitutional to use "petitioner’s silence against her in determining the facts of the offense at the sentencing hearing."  Presumably that ruling in part explains why the majority hear makes much of the defendant voluntarily choosing to allocute and assert innocence.  

December 2, 2021 at 03:10 PM | Permalink


The problem, of course, is what if the guy is actually innocent? Should Rittenhouse have been expected to accept guilt had the jury convicted on the bogus charges?

Posted by: Federalist | Dec 3, 2021 6:53:42 AM

I certainly see a difference between remaining silent at a sentencing hearing and claiming innocence. A judge should very likely be allowed to view the latter as a lie base upon the contrary jury finding and take that into account when crafting the ultimate sentence (at least if the claim of innocence is based on "I didn't do it" rather than :the jury got the law wrong").

Now, I'm not sure whether a sentencing allocution is under oath(I suspect not) but it is still the now-convict pleading their circumstances or otherwise.

Just as someone who puts the state to their burden of proof should expect a heavier sentence than one who admits wrongdoing, the same should be true once that burden is met and the once-defendant continues to proclaim their innocence. Given that any chance for reversal at the trial court level is now passed it seems like the wiser course would be to simply remain silent and hope the court of appeals gets it right.

Posted by: Soronel Haetir | Dec 3, 2021 12:41:49 PM

I would say it is ok to increase his sentence if you're certain with no doubt that he is guilty. Otherwise, don't consider it.

I certainly hope they got it right.

Posted by: Wiliam Jockusch | Dec 3, 2021 10:44:50 PM

Should an innocent man continue to claim his innocence at allocution? And should a judge use such claims as a basis to increase the sentence?

"I certainly hope they got it right"

Author Alice Sebold publicly apologized Tuesday to the man who was exonerated last week in the 1981 rape that was the basis for her memoir “Lucky” and said she was struggling with the role she played “within a system that sent an innocent man to jail.”

Anthony Broadwater, 61, was convicted in 1982 of raping Sebold when she was a student at Syracuse University. He served 16 years in prison. (not to mention the remainder of his life on the sex offender registry, which is equal in punishment as is incarceration).

His conviction was overturned Nov. 22, 2021 after prosecutors reexamined the case and determined there were "serious flaws" in his arrest and trial.
(But no one held accountable for these 'serious flaws', as is the custom in our criminal justice system).

In a statement released to The Associated Press and later posted on Medium, Sebold, the author of the novels “The Lovely Bones” and “The Almost Moon,” wrote to Broadwater that she was truly sorry for what he’d been through.

Guess they didn't get it right.

Posted by: SG | Dec 4, 2021 5:45:13 PM

Yes, that's just it. Broadwater was repeatedly denied parole, in part because he would not "admit" the crime he did not commit.

In such aa situation, the prole board should have asked itself if they were really certain about his guilt. If they weren't, they should have made their determination without considering that particular evidence.

Posted by: William C Jockusch | Dec 5, 2021 6:56:06 AM

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