FL Supreme Court continues pattern of overturning or sidestepping its precedents

Justices OK using accused’s innocence claims against him in sentencing

By: - December 3, 2021 5:26 pm

The Florida Supreme Court building. Credit: Michael Moline

The Florida Supreme Court has again overturned established constitutional law by upholding a maximum sentence imposed on a Leon County man deemed to have shown inadequate remorse because he insisted on protesting his innocence.

This time, the conservative majority installed by Gov. Ron DeSantis didn’t directly overrule its own precedents — it decided they didn’t apply to the case of Alvin Davis, who drew a 15-year prison term for being a felon in possession of a gun that he maintained was not his.

That’s because the precedents at issue — Pope v. State, decided in 1982, and Holton v. State, from 1990 — involved capital cases in which judges balance aggravating factors against mitigating factors in deciding whether to impose the death penalty.

In Davis’ case, the death penalty was not on the table. State law allowed a sentence of up to 15 years and so the trial judge was free to do so, Chief Justice Charles Canady wrote in the majority opinion.

“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,” Canady continued.

In an indignant dissent, Justice Ricky Polston insisted the outcome violated the clear text of the Fifth Amendment to the U.S. Constitution and also Article 1, Section 9, of the Florida Constitution, which holds: “No person shall be deprived of life, liberty or property without due process of law … or be compelled in any criminal matter to be a witness against oneself.”

“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,” Polston wrote.

“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.”

Justice Jorge Labarga signed Polston’s dissent and, writing separately, rejected the idea of differentiating between capital and non-capital cases.

“Indeed, I find that Florida’s capital cases provide important context here, and one needs to look no further than the 30 exonerations from Florida’s death row — the most of any state in our nation,” Labarga wrote.

“A defendant’s adherence to a claim of innocence is not always borne of a stubborn refusal to admit the truth. Sometimes, people convicted by juries are actually innocent.”

The majority ruling also brought a rebuke from Manny Diaz, chairman of the Florida Democratic Party.

“It’s a travesty of justice when judges who swear to defend and uphold the Constitution decide not just to ignore it, but to walk all over a defendant’s rights as enshrined in the Fifth Amendment. No one, I repeat no one, should be punished for exercising their rights under the Constitution,” Diaz said in a written statement.

“This is a dangerous precedent not just for Alvin Davis, but for everyone in this country who looks to the Constitution’s Bill of Rights as a shield against injustices our founders wanted to protect us against. The same way a judge can ignore the 5th Amendment, they can ignore our right to freedom of religion, or freedom of speech.”

State Sen. Perry Thurston of Broward County added in his own statement:

“Punishing someone for exercising their constitutionally protected 5th Amendment right is not only unjust, it’s anti-American. This goes against our nation’s core values of freedom and justice for all. This is a reminder of the dire need to revisit how we select judges in Florida and the importance of an independent judiciary.”

Conservative majority

Joining Canady’s opinion were justices Alan Lawson, Carlos Muñiz, John Couriel, and Jamie Grosshans. DeSantis had placed the latter three on the court, solidifying a conservative majority after three more liberal justices reached their mandatory retirement age at about the time DeSantis took office in January 2019.

The new court has rewarded DeSantis, and legislative Republicans who long bristled at the old court’s rulings striking down their priorities. It has reversed a number of its own precedents by allowing non-unanimous jury verdicts to impose death sentences; lowering the legal standard for weighing circumstantial evidence; making it easier to execute someone with intellectual disabilities, and imposing tighter standards for determining the admissibility of expert testimony.

The Davis ruling required the court to deal with a line of Supreme Court precedent, including:

  • Pope, decided in 1982, in which the justices ruled that “to equate a defendant’s not guilty plea with lack of remorse which may be considered in weighing an aggravating circumstance in support of imposition of the death penalty would in effect punish the defendant for exercising rights of due process.”
  • Holton, from 1990, when the court decided that “the fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt.”

Every one of Florida’s five intermediate appellate courts had been following these precedents, court records show — at least, until the First District Court of Appeal upheld the sentence imposed against Davis by a Leon County Circuit judge.

Davis, who had a lengthy history of violent crime, had been a passenger in a car stopped by police and insisted the gun belonged to the driver. He not testify during his trial, court records show, but did speak up for himself during his sentencing hearing — blaming the driver, the police, his attorney, and the trial court for his conviction.

“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 I’m accused of. I am innocent,” he said at the time.

That appears to have offended the sentencing judge, signaling a lack of remorse in light of Davis’ lengthy violent criminal record.

“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 judge told him.

Canady conceded that defendants have the right to maintain their innocence and insist on a jury trial but added that Davis waived his right to remain silent by speaking on his own behalf during his sentencing hearing.

“The trial court was under no obligation to ignore such statements and did not err in considering those statements in imposing the legal sentence here. Our system need not treat as equals an unrepentant convict and one who shows remorse,” Canaday wrote.

“Pope is inapplicable here. This case is not a capital case requiring consideration of aggravating factors. In capital cases, only statutory aggravating factors may be considered, and a statutory aggravating factor is required to be proven beyond a reasonable doubt before a sentence of death may be imposed,” he wrote.

“In a noncapital case, the statutory maximum sentence is a legal sentence by virtue of the conviction alone.”

He dismissed the pertinent holding in Holton as going “far beyond the facts presented” in that case “and is unnecessary to the court’s decision. It constitutes dicta that we expressly disapprove.” (Dicta means asides judges sometime include in written opinions that don’t carry precedential weight.)

Dismissing the truth of Davis’ protestations of innocence, Canady noted: “Because there is no protected right to lie to the court, any potential chilling effect on a defendant’s decision to testify falsely is entirely permissible.”

In a concurring opinion, Grosshans wrote that “Davis’s uncoerced words were relevant to the severity of his criminal punishment. Specifically, through his words, Davis manifested a refusal to take responsibility for his criminal conduct, a matter bearing on his amenability to rehabilitation. Thus, the sentencing court properly considered Davis’s refusal to accept responsibility for his criminal conduct in imposing the maximum sentence.”

She differed with Canady on one point:

“In my view, today’s decision would not excuse a court’s consideration of an unconstitutional factor, such as race or religion, in imposing a sentence up to and including the statutory maximum. Accordingly, if a court considers an unconstitutional factor in imposing the sentence, that sentence would still be unlawful even if it was within the statutory range.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.