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: 

DOES A TRIAL COURT, WHEN IMPOSING A SENTENCE ON A DEFENDANT WHO HAS VOLUNTARILY CHOSEN TO ALLOCUTE AND MAINTAIN HIS INNOCENCE AT THE SENTENCING HEARING, VIOLATE THE DEFENDANT’S DUE PROCESS RIGHTS BY CONSIDERING THE DEFENDANT’S FAILURE TO TAKE RESPONSIBILITY FOR HIS ACTIONS?…

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.