Consideration of a defendant’s lack of remorse used to be prohibited in Florida criminal courts. This was prohibited because this was deemed a due process violation, as well as a violation of a defendant’s Fifth Amendment right to remain silent. Mr. Forman has successfully overturned sentencing in criminal appeals when this occurred in the past, but things have changed.
In a dramatic shift, the Florida Supreme Court ruled earlier this month in Davis v. State, 2021 WL 5710820 (Fla. 2021), that a trial judge can impose a harsher sentence if a defendant fails to show remorse. The Court held “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. ”
This ruling will have a chilling effect on whether a defendant testifies at sentencing. Criminal defense lawyers now have to choose between having their client remain silent at sentencing unless they are going to admit guilt and apologize. Other considerations must now be considered. Will the Florida Supreme Court expand this ruling to also include testimony at trial? What happens if a defendant appeals and prevails, can this admission be used at trial? This certainly is not the last we hear on this issue.