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Florida Appellate Court Rules That Trial Judge

Florida Appellate Court Rules That Trial Judge May Not Consider The Defendant's Claim Of Innocence At Trial and At Sentencing As A Factor To Increase The Sentence Over States Recommendation Of Probation.

Hannum v. State, 13 So. 3d 132 (Fla. 2d DCA 2009) involved a conviction of the defendant for carrying a concealed firearm without a permit. The case arose when Hannum called 911 because he was having an altercation with a man at an apartment complex. During the call the defendant informed the operator that he had a gun. Hannum contended that the man was threatening people in the common area of the apartment complex and throwing beer bottles and yelling repeatedly, "I'm gonna kill you". Hannum stated that he then went to his apartment and dialed 911, at the same time retrieved his 45 caliber Derringer and confronted the man in the hall. He then went outside into the parking lot because he lost the cellular phone connection to 911.

When the police arrived Hannum put the gun back in his holster, which according to Hannum was outside of his shirt. The police claimed the Derringer was inside his shirt and therefore a concealed weapon. Hannum was arrested for carrying a concealed firearm in violation of Florida Statute $ 790.01.

Hannum went to trial and was convicted.

At sentencing, the state recommended probation. The sentencing range provided in the sentencing score sheet was from any non-prison sanction to five years in prison. At the sentencing the court stated that it was concerned because of the defendant's responses and testimony was less than candid and that it was troubled by that testimony. The court also stated that it was troubled by the fact that the defendant took no responsibility for his own actions, either while testifying in trial, or at the sentencing.

The court imposed a sentence of 24 months in prison and did not give any explanation as to why it rejected the state's recommendation for a sentence of probation.

On appeal, the defendant argued that the trial court improperly considered his failure to take responsibility, as well as failing to testify candidly at trial and at sentencing.

After the sentencing and during the course of the appeal the defendant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b). The appellate court rejected this as being improper for preserving for appeal, the issue of whether the court improperly considered the factors described above in imposing the sentence.

The appellate court then noted that any error by the sentencing judge is cognizable on direct appeal if it is fundamental. The appellate court held that the factors relied upon by the trial court in sentencing was equivalent to a denial of due process.Hopkins v. State, 632 So. 2d 1372, 1374 (Fla. 1994).

The court wrote, "It is impermissible for a trial court to consider a defendant's assertions of his innocence and refusal to admit guilt in imposing sentence. SeeBracero v. State, 10 So. 3d 664, 665-666 (Fla 2d DCA 2009); Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004)." Hannum at 135.

The trial court's remarks that it was troubled by Hannum's failure to take responsibility for his actions at trial and at sentencing and his ascertains of innocence were therefore improper factors considered by the court in imposing the 24 month sentence.

In discussing this matter the court also noted,

Moreover, the court also improperly considered the truthfulness of Hannum's testimony at trial. See City of Daytona Beach v. Del Percio, 476 So. 2d 197, 205 (Fla. 1985)....A court may not rely on a defendant's lack of truthfulness in imposing sentence because it "would create a catch-22- the defendant may not be punished for his exercise of the right to trial but may be punished, for his lack of candor during the trial." Del Percio, 476 So. 2d at 205.

Hannum at 136.

The court remanded to a new circuit judge for resentencing.

The practice of imposing a greater sentence upon a defendant who invokes his right to trial and expresses his innocence, is one that may occur without the court's direct stated concerns, as was in the Hannum case. Defense counsel should consider using this case if it appears that the court may consider improper factors in sentencing.

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