Davis v. State (268 So. 3d 958, 2019)

Winsor, J.

As the Florida Supreme Court explained in its 1990 Holton v. State decision, "[a] defendant has the right to maintain his or her innocence and have a trial by jury." 573 So.2d 284, 292 (Fla. 1990). And "because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt," a defendant's decision to not plead guilty "cannot be used against him or her during any stage of the proceedings." Id. In short, the court concluded, "[a] trial court violates due process by using a protestation of innocence against a defendant." Id. (citing U.S. Const. amend. V ; Art. I, § 22, Fla. Const.).

Starting from these fundamental propositions, Florida's district courts have developed new, different rules. "Over time, case law has expanded the rule in Holton and applied it in cases which indicate that it is generally improper for the sentencing court to consider the defendant's lack of remorse." Rankin v. State , 174 So.3d 1092, 1096-97 (Fla. 4th DCA 2015) (marks omitted) (quoting Peters v. State , 128 So.3d 832, 847 (Fla. 4th DCA 2013) ). For its part, this court has explicitly held that "[a] lack of remorse or a failure to accept responsibility may not be considered by the trial court when fashioning an appropriate sentence." Dumas v. State , 134 So.3d 1048, 1048 (Fla. 1st DCA 2013) (emphasis added) (citing Green v. State , 84 So.3d 1169, 1171 (Fla. 3d DCA 2012) (relying on Holton ) ); see also Wood v. State , 148 So.3d 557, 557 (Fla. 1st DCA 2014) ("Our precedents make clear that a sentence conditioned, even in part, on a defendant's lack of remorse and claim of innocence violates due process and warrants remand for resentencing before a new judge." (marks omitted) ); Jackson v. State , 39 So.3d 427, 428 (Fla. 1st DCA 2010) (reversing sentence after sentencing judge said "since you show no remorse or regret for any of your actions I'm going to sentence you to 25 years"); Ritter v. State , 885 So.2d 413, 414 (Fla. 1st DCA 2004) (holding that reliance on lack of remorse violates due process); K.Y.L. v. State , 685 So.2d 1380, 1381 (Fla. 1st DCA 1997) (citing Holton ) ("[L]ack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence."), disapproved of on other grounds by State v. J.P.C. , 731 So.2d 1255 (Fla. 1999). Decisions from other districts have said the same thing. See, e.g ., Chiong-Cortes v. State , 260 So.3d 1154, 1154 (Fla. 3d DCA 2018) ("[C]omments indicating the trial judge considered Appellant's lack of remorse in fashioning the sentence constitute reversible error."); Davis v. State, 149 So.3d 1158, 1160 (Fla. 4th DCA 2014) ("A trial court's consideration of a defendant's lack of remorse in imposing its sentence is fundamental error."); Whitmore v. State , 27 So.3d 168, 169 (Fla. 4th DCA 2010) ("[T]he trial court's reliance on these factors [lack of remorse and failure to accept responsibility] violated [defendant's] due process rights and constituted fundamental error."). But see St. Val v. State , 958 So.2d 1146, 1146 (Fla. 4th DCA 2007) ("We reject appellant's contention that a sentencing judge may never take a defendant's lack of remorse into consideration when imposing sentence.").

We granted en banc review to consider whether these cases state a correct rule of law, and we conclude they do not. We hold that a trial judge does not violate a defendant's due process rights by merely considering the defendant's lack of remorse or refusal to accept responsibility. We hold that lack of remorse and refusal to accept responsibility can be valid sentencing considerations when sentencing within the statutory range, and we recede from our cases that suggest otherwise.

I.

A jury convicted Davis of possessing a firearm as a convicted felon. According to trial testimony, a teenager was driving a car with Davis as a passenger. Officers stopped the car and found drugs, drug paraphernalia, and a gun. The teenage driver testified that he did not know a gun was in the car until right before the traffic stop, when Davis pulled out the gun, wrapped it in an orange shirt, and stuffed it under the seat.

The teen's testimony was essential, and the defense suggested it was also untrue. The defense theorized that officers conditioned the teen's release on his implicating Davis. The defense noted that although the teen told officers the drugs and paraphernalia were his, officers opted to cite him, not arrest him. In its rebuttal closing, the State referenced a dashcam video and argued that "if that audio had recorded at any point the officer saying, hey, if you point your finger at this guy, we'll give you a juvenile citation and let you go home-- ...." Defense counsel interrupted and objected to "burden shifting," and the trial court concluded the State's argument was improper because the parties stipulated to admitting the video without audio. The State, resuming its rebuttal argument, told the jury that "[i]f there had been some special deal cooked up, I think we would have heard about it." The jury convicted.

Davis moved for a new trial. After a hearing, the court denied the motion, and the case proceeded to sentencing. The presentence investigation report noted Davis's "extensive criminal history," which included "numerous violent offenses." It also concluded that Davis "appears to have a history of gang related activity" and "apparently continues to be a threat to the safety of the community." The PSI report recommended the maximum sentence.

At the sentencing hearing, Davis declared he was innocent. He insisted that the gun was not his, that the jury convicted him without sufficient evidence, and that his counsel performed inadequately. After Davis spoke, the court pronounced sentence. In doing so, the court recounted Davis's significant criminal history and told Davis "you still fail to take any responsibility for your actions." The court concluded that, "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 principal issue we now face is whether the court's observation that Davis "still fail[s] to take any responsibility for [his] actions" means the court violated Davis's due process rights.

II.

Although we granted en banc review to consider the sentencing issue, Davis also argues that the court erred in denying his new-trial motion. We address this argument first because it would, if successful, moot the sentencing issue.

"A trial court's denial of a motion for a new trial is reviewed under an abuse of discretion standard. In order to demonstrate abuse, the nonprevailing party must establish that no reasonable person would take the view adopted by the trial court." Stephens v. State , 787 So.2d 747, 754 (Fla. 2001). Here, Davis argues that the prosecutor's comments were improper burden shifting, warranting a new trial. After a hearing, the trial court offered several cogent reasons for denying the new-trial motion. First, the court concluded that defense counsel opened the door, both by cross-examining the officer about the existence of an audio recording and by suggesting in closing that there was a deal for leniency with the teen driver. Second, the court found that the comment was brief, that counsel stopped almost immediately for a sidebar, and that the comment likely did not influence the jury. Third, the court concluded that any error would have been harmless because of, among other things, the fact that Davis's DNA was on the orange shirt in which the gun was wrapped.

We find no abuse of discretion in the trial court's order. We therefore affirm the conviction and turn now to the sentencing issue.

III.

As federal and state courts have frequently said, "[i]t is well established that a sentencing judge may consider lack of remorse when imposing a sentence." United States v. Johnson , 903 F.2d 1084, 1090 (7th Cir. 1990) ; accord State v. Herrera , 164 Idaho 261, 429 P.3d 149, 168 (2018) ("A trial court does not err by considering a defendant's lack of remorse at sentencing ...."); People v. Mulero , 176 Ill.2d 444, 223 Ill.Dec. 893, 680 N.E.2d 1329, 1337 (1997) ("It is well settled that a defendant's remorse or lack thereof is a proper subject for consideration at sentencing.").

In fact, Florida sentencing statutes explicitly authorize consideration of remorse and responsibility. A trial court may apply "[a] downward departure from the lowest permissible sentence" if the offense was an isolated incident done in an unsophisticated way and was one "for which the defendant has shown remorse." § 921.0026(1), (2)(j), Fla. Stat. (2018). Even before the Legislature enacted that provision, the Florida Supreme Court approved downward departures based on remorse. State v. Sachs , 526 So.2d 48, 51 (Fla. 1988) (including "remorse" among the "valid factors considered by the trial court"). The federal sentencing guidelines similarly consider "acceptance of responsibility" as a legitimate and appropriate factor. See, e.g ., United States Sentencing Guidelines Manual § 3E1.1(a) (U.S. Sentencing Comm'n 2018) ("If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels."); id. § 3E1.1(a) cmt. ("[A] defendant who clearly demonstrates acceptance of responsibility for his offense ... is appropriately given a lower offense level than a defendant who has not demonstrated acceptance of responsibility."). In short, courts and legislatures throughout the country-including the Florida Supreme Court and the Florida Legislature-have recognized that remorse can be a proper sentencing factor.

The commonsense approach of considering a defendant's remorse-or willingness to take responsibility-fits with the Legislature's command that each sentence be not only commensurate with the severity of the offense but also fashioned in light of "the circumstances surrounding" it. § 921.002(1)(c), Fla. Stat. The United States Supreme Court long ago recognized that "possession of the fullest information possible concerning the defendant's life and characteristics" is "[h]ighly relevant-if not essential" to a judge's selection of an appropriate sentence. Williams v. People of State of N.Y ., 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ; see also United States v. Grayson , 438 U.S. 41, 50, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (describing as a "fundamental sentencing principle" that " 'a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come' " (quoting United States v. Tucker , 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) ) ). Florida courts thus consider a wide array of factors in sentencing. See, e.g. , Noel v. State , 191 So.3d 370, 379 (Fla. 2016) ("A trial court may consider a defendant's financial resources at sentencing."); Hall v. State , 248 So.3d 1227, 1232 (Fla. 1st DCA 2018) (noting that Criminal Punishment Code allows consideration of "a juvenile's youth and its attendant characteristics"); Charles v. State , 204 So.3d 63, 72 (Fla. 4th DCA 2016) ("The sentencing factors properly considered by the trial court relate to the defendant, his offense, and the victim."); Imbert v. State , 154 So.3d 1174, 1175 (Fla. 4th DCA 2015) (holding judges "may consider a variety of factors, including a defendant's criminal history, employment status, family obligations, and over-all reputation in the community"); see also Apprendi v. New Jersey , 530 U.S. 466, 481, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (noting that judges may "exercise discretion-taking into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute").

A defendant's remorse or willingness to accept responsibility comprises part of the whole picture. These factors speak to a defendant's character and to the defendant's potential for rehabilitation. As our supreme court has recognized, "[t]o an unspecified degree, the sentencing judge is obligated to make his decision on the basis, among others, of predictions regarding the convicted defendant's potential, or lack of potential, for rehabilitation." Simmons v. State , 419 So.2d 316, 320 (Fla. 1982) (quoting Grayson , 438 U.S. at 47-48, 98 S.Ct. 2610 ). Indeed, with a legislative pronouncement that rehabilitation "is a desired goal of the criminal justice system" (albeit subordinate to punishment), § 921.002(1)(b), Fla. Stat., consideration of remorse or acceptance of responsibility is critical: "If a defendant is remorseful, it means that he is sorry he committed the crime for which he is to be sentenced. One who so regrets his acts may not commit such acts in the future." St. Val , 958 So.2d at 1146 ; accord Burr v. Pollard , 546 F.3d 828, 832 (7th Cir. 2008) (explaining that "an indifferent criminal isn't ready to reform," that "a remorseful criminal is less likely to return to his old ways," and that therefore remorse "is properly considered at sentencing because it speaks to traditional penological interests such as rehabilitation"); cf. also Simmons v. State , 419 So.2d 316, 320 ("A person's potential for rehabilitation is an element of his character ...."); State v. Stevens , 146 Idaho 139, 191 P.3d 217, 226 (2008) (concluding that "a court may consider a defendant's continued assertion of innocence when evaluating the possibility of rehabilitation").

For these reasons, we can no longer embrace the blanket, judge-made rule that when it comes to sentencing, "[a] lack of remorse or a failure to accept responsibility may not be considered." Dumas , 134 So.3d at 1048 ; see also, e.g. , Wood v. State , 148 So.3d 557 (Fla. 1st DCA 2014) ; K.Y.L. , 685 So.2d at 1381 ("[L]ack of contrition or remorse is a constitutionally impermissible consideration in imposing sentence.").

Aside from the never-consider-remorse-or-responsibility rule that some cases have followed, there is a separate (and perhaps more restrained) view that judges may rely on remorse to reduce a sentence but may not rely on a lack of remorse to increase a sentence. Under this view, remorse is a proper mitigating factor but not a proper aggravating factor. See Ritter v. State , 885 So.2d 413, 414 (Fla. 1st DCA 2004) (citing Holton , among others) ("Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true."); see also Catledge v. State , 255 So.3d 937, 941 (Fla. 1st DCA 2018). And to be sure, the Florida Supreme Court has applied this concept in capital sentencing. See Pope v. State, 441 So.2d 1073, 1078 (Fla. 1983) ("Any convincing evidence of remorse may properly be considered in mitigation of the sentence, but absence of remorse should not be weighed either as an aggravating factor nor as an enhancement of an aggravating factor."). But rules applicable to the unique capital-sentencing context do not always find easy application in everyday sentencings like Davis's, and the mitigation-versus-aggravation rules do not apply here.

The maximum penalty in a death-penalty case-death-requires more than just a conviction; it requires proof of a statutory aggravating factor. See § 921.141, Fla. Stat. Lack of remorse is not among the statutory aggravating factors and cannot be used to justify a death sentence. Shellito v. State , 701 So.2d 837, 842 (Fla. 1997). On the other hand, capital defendants can assert anything in mitigation, Hitchcock v. Dugger , 481 U.S. 393, 394, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and anything includes remorse. It is therefore unsurprising that the Florida Supreme Court has held that in the capital-sentencing context, remorse can help a capital defendant as a mitigating factor, but that lack of remorse cannot work against him as an aggravating factor. See Oliver v. State , 214 So.3d 606, 614-15 (Fla. 2017) ; Pope , 441 So.2d at 1078.

Judges in noncapital cases, though, do not consider "aggravators" and "mitigators" in the same sense that capital sentencers do. After the Criminal Punishment Code's enactment, our sentencing statutes no longer "contemplate upward departure sentences, because generally the statutory maximum sentence is the highest possible sentence for any crime." Bryant v. State , 148 So.3d 1251, 1258 (Fla. 2014) ; see also § 921.002(1)(g), Fla. Stat. ("The trial court judge may impose a sentence up to and including the statutory maximum for any offense ...."). In Davis's case, then, the judge had statutory authority to impose a sentence of up to fifteen years. § 775.082(1)(d), Fla. Stat. 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.

Lane v. State , 981 So.2d 596, 598 (Fla. 1st DCA 2008).

Next, if we held that Davis's refusal to take responsibility could not increase his sentence but could justify not lowering his sentence, see Ritter , 885 So.2d at 414, we would have to figure out which of those happened, and it is not clear how we would do that. If a judge gives an unremorseful defendant a longer sentence than he might have given a remorseful defendant, we often will never know whether the resulting differential flowed from an "aggravated" sentence or an "unmitigated" sentence. There is no baseline sentence, no upward or downward departure-just a sentence that involved a judge's consideration (in some fashion) of the offense and the defendant's characteristics. Indeed, that is the situation here. Yet our dissenting colleagues vote to reverse Davis's sentence without ever deciding whether the judge impermissibly increased Davis's sentence or permissibly refused to decrease it.

Notably, none of today's opinions doubts the legality of considering remorse or acceptance of responsibility to reduce (or not reduce) a sentence. This further supports our conclusion that these considerations are, in fact, valid sentencing considerations. It should go without saying that no up-versus-down distinction would be an issue with truly impermissible sentencing factors. With religion, for example, we would never say a judge could lighten a sentence for defendants who disavowed Catholicism, so long as the judge did not enhance sentences for those who embraced Catholicism. Cf. Torres v. State , 124 So.3d 439, 442 (Fla. 1st DCA 2013) (reversing sentence where judge assumed defendant was Catholic and made comments that could "reasonably be construed to suggest that the trial judge based appellant's sentence, at least in part, on religion"). We would instead say-quite emphatically-that a defendant's religious faith must not play any part in the sentence. In other words, we would say improper sentencing factors should not be factors in sentencings-up or down. See id. ("No one should be punished, or conversely shown leniency , merely because he or she may be a member of a particular religion." (emphasis added) ); cf. also Roberts v. United States, 445 U.S. 552, 557 n.4, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980) ("We doubt that a principled distinction may be drawn between 'enhancing' the punishment imposed upon the petitioner and denying him the 'leniency' he claims would be appropriate if he had cooperated."); Noel , 191 So.3d at 379 ("We view a sentence providing for a reduction of prison time upon the payment of restitution no different than a trial court imposing a lengthier sentence if the defendant fails to make a restitution payment ....").

This brings us back to the rule from Holton , from which some of our cases eventually determined that courts may not consider-at all-a defendant's failure to take responsibility or a defendant's lack of remorse. Holton held that "[t]he fact that a defendant has pled not guilty cannot be used against him or her during any stage of the proceedings." 573 So.2d at 292. But when a defendant forgoes permissible benefits of pleading guilty (such as a lenient sentence), it does not necessarily follow that his not-guilty plea was unconstitutionally "used against him."

The United States Supreme Court has "squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea." Corbitt v. New Jersey , 439 U.S. 212, 219, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978). These substantial benefits can include sentences lower than what would be possible after trial, or even sentences lower than would be required after trial. Id. ; cf. also § 921.0026(2)(a) (authorizing downward departure if it "results from a legitimate, uncoerced plea bargain"). In other words, it does not violate the Constitution to present defendants with the choice of either giving up the right to a trial or losing the prospect of a reduced sentence. Presenting defendants with these choices "clearly may have a discouraging effect on the defendant's assertion of his trial rights, [but] the imposition of these difficult choices is an inevitable-and permissible-attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Bordenkircher v. Hayes , 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (marks and alterations omitted).

To the extent Davis had to choose between maintaining his innocence at sentencing or seeking a more favorable sentence, he was in no different situation than defendants facing plea offers every single day. In fact, had Davis requested a downward departure based on section 921.0026(2)(a) -which requires a showing that there was "a legitimate, uncoerced plea bargain"-the trial court obviously would have rejected the request because Davis did not plead guilty. Yet we surely would not say his decision to plead not guilty was unconstitutionally "used against him." Cf. United States v. Reed , 882 F.2d 147, 150 (5th Cir. 1989) (explaining that a defendant seeking reduced sentence based on acceptance of responsibility "may find it difficult, after conviction, to persuade the district court that he is entitled to [that] reduction," but noting that "this difficulty does not mean that a defendant is penalized for failing to plead guilty") (quoting United States v. White , 869 F.2d 822, 826 (5th Cir. 1989) ). Nothing in Holton 's broad and general language changes any of this.

That is not to say, of course, that courts may punish defendants for exercising their jury-trial rights. "Under our constitutional system it would be impermissible for the sentencing authority to mete out higher sentences ... as punishment for those who successfully exercised their right[s]." Chaffin v. Stynchcombe , 412 U.S. 17, 24, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). A defendant may still challenge a sentence not exceeding the statutory maximum, if he can "argue that his sentence was a result of vindictiveness." Hall v. State , 823 So.2d 757, 762 (Fla. 2002). There is nothing in this record, though, to even hint this was the case. As in Corbitt , "[w]e discern no element of retaliation or vindictiveness against [the defendant] for going to trial.... Nor does this record indicate that he was being punished for exercising a constitutional right." 439 U.S. at 223, 99 S.Ct. 492 ; see also Beech v. State , 436 So.2d 82, 85 (Fla. 1983) (holding that absent evidence that sentences "were imposed to retaliate against the petitioners for having pursued their rights, the presumption of correctness stands"). Again, "withholding the possibility of leniency from [those electing trial] cannot be equated with impermissible punishment." Corbitt , 439 U.S. at 223, 99 S.Ct. 492. "If [defendant] had been filled with remorse at his resentencing and admitted his crimes before the district court, it is possible that he would have received a reduced sentence. But this does not mean that he was punished for maintaining his innocence in any way that the Constitution recognizes." United States v. McClain , 2 F.3d 205, 207 (7th Cir. 1993) ; accord United States v. Thompson , 476 F.2d 1196, 1201 (7th Cir. 1973) ("A show of lenience to those who exhibit contrition by admitting guilt does not carry a corollary that the Judge indulges in a policy of penalizing those who elect to stand trial."); St. Val , 958 So.2d at 1147 ("This is not a case where a defendant was punished for protesting his innocence as in ... Holton . Nor is it a case where a court used lack of remorse as an aggravating factor in a first degree murder prosecution.").

In some other case, it might appear that a judge's refusal to grant leniency is tantamount to punishing the defendant for going to trial. But this is not that case. Here the judge simply observed that, after a long criminal history, Davis continued to commit crimes-that even after multiple convictions and multiple punishments, Davis "still fail[s] to take any responsibility for [his] actions." This did not prove a constitutional violation.

IV.

Although we affirm Davis's conviction and sentence, we certify that we pass upon an issue of great public importance. We certify the following question, giving the Florida Supreme Court an opportunity to provide clarity in this area.

WHEN, IF EVER, MUST AN APPELLATE COURT REVERSE A SENTENCE BASED ON THE TRIAL COURT'S CONSIDERATION OF "REMORSE,"

"FAILURE TO TAKE RESPONSIBILITY," OR THE LIKE ?

The judgment on appeal is AFFIRMED .

B.L. Thomas, C.J., and Rowe, Ray, Osterhaus, Jay, and M.K. Thomas, JJ., concur.

B.L. Thomas, C.J., concurs in an opinion in which Jay and M.K. Thomas, JJ., join.

Kelsey, J., concurs in result with opinion.

Lewis, J., concurs in part and dissents in part in an opinion in which Makar and Bilbrey, JJ., join.

Wetherell, J., concurs in part and dissents in part in an opinion in which Roberts, Makar, and Bilbrey, JJ., join.

Makar, J., concurs in part and dissents in part in an opinion in which Lewis and Bilbrey, JJ., join.

Wolf and Winokur, JJ., recused.

A PSI's purpose is to provide information to help the court impose an appropriate sentence. See Fla. R. Crim P. 3.712(a). In this case, despite moving to habitualize Davis and advising the court that it had done so, the State did not pursue habitualization at sentencing.

These cases are not outliers. See, e.g. , United States v. Smith , 424 F.3d 992, 1016 (9th Cir. 2005) (explaining that lack of remorse is a "legitimate sentencing factor[ ]"); United States v. Ford , 840 F.2d 460, 467 (7th Cir. 1988) ("[I]n determining the appropriate sentence for a defendant, one relevant factor for the district court to consider is the defendant's refusal to recognize his offense."); United States v. Bangert , 645 F.2d 1297, 1308-09 (8th Cir. 1981) (holding it permissible to consider lack of remorse in sentencing); Isaacs v. State , 259 Ga. 717, 386 S.E.2d 316, 323 (1989) ("[T]he defendant's remorse or lack thereof is a permissible area of inquiry during sentencing."); Deane v. State , 759 N.E.2d 201, 205 (Ind. 2001) ("Lack of remorse is a proper factor to consider in imposing a sentence."); Owens v. State , 544 N.E.2d 1375, 1378 (Ind. 1989) ("There is no general prohibition against using lack of remorse as a sentencing factor."); State v. Swint , 302 Kan. 326, 352 P.3d 1014, 1029 (2015) (noting court had "approved lack of remorse as appropriate for consideration in criminal sentences"); Commonwealth of Pa. v. Miller , 555 Pa. 354, 724 A.2d 895, 902 (1999) ("[T]he demeanor of a convicted defendant, including his apparent lack of remorse, is a proper consideration in fixing the sentence for a non-capital offense."); State v. Pico , 382 Wis.2d 273, 914 N.W.2d 95, 114 (2018) ("The circuit court's operative statement on this subject was simply 'I will consider whether or not you demonstrate remorse as part of my sentence.' Taken at face value, that is an entirely appropriate and unremarkable statement-remorse is a proper factor to consider in developing a sentence."). Although Judge Makar's dissent suggests this is some "federal rule" with a "hodgepodge" of state courts in agreement, he cites law review articles (albeit for other purposes) that confirm the consistency of these decisions. See Caleb J. Fountain, Silence and Remorselessness, 81 Alb. L. Rev. 267, 288-89 (2018) ("That a finding of remorselessness is a legal basis upon which a defendant's punishment may be increased is nearly beyond dispute."); Rocksheng Zhong, MD, MHS, Judging Remorse, 39 N.Y.U. Rev. L. & Soc. Change 133, 137 (2015) ("The consideration of remorse or its absence as a mitigating or aggravating factor during criminal sentencing is accepted in both federal and state courts.").

In Norvil v. State , the Florida Supreme Court adopted a "bright line rule for sentencing purposes: a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense." 191 So.3d 406, 410 (Fla. 2016). That bright-line rule is not at issue here, and its underlying rationale does not undermine our conclusion. The court concluded that the Criminal Punishment Code explicitly authorized consideration of "prior arrests" and thus implicitly precluded consideration of later arrests. Id. at 408-09. But the PSI provision referenced in Norvil authorizes consideration of, among many other things, "the offender's motivations and ambitions and an assessment of the offender's explanations for his or her criminal activity." § 921.231(1)(l ), Fla. Stat. A defendant's motivations, ambitions, and explanations of conduct capture remorse or willingness to accept responsibility. And like many of the other PSI considerations geared toward seeing the whole picture-educational background, social history, medical history, environments to which the offender might return, treatment opportunities, vocational training opportunities, prior criminal history, "[a] complete description of the situation surrounding the criminal activity," and so on, id. § 921.231(1) -these factors aid the court in gauging a defendant's rehabilitation potential.

Suppose, for example, the judge had explained his sentence this way: "Mr. Davis, the severity of your crimes, coupled with your extensive criminal history, warrant the maximum sentence, and based on these factors alone, that is the sentence I would impose. The only thing that could have convinced me to do otherwise would have been had you shown remorse today, which you have not. Therefore, I sentence you to fifteen years." None of today's dissents suggests that would be impermissible. Yet they apparently assume that the trial judge increased the sentence from some other unannounced baseline, rather than declined to reduce from the maximum.

In fact, long after Holton , the Florida Supreme Court recognized that "not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid." Pasha v. State , 225 So.3d 688, 702 (Fla. 2017) (quoting Corbitt , 439 U.S. at 218, 99 S.Ct. 492 ). Moreover, Holton was a death case, and it applied its broad language in a context different from that presented here. 573 So.2d at 292. The argument in Holton was that the trial judge failed to consider impaired capacity as statutory mitigating factor under the capital-sentencing scheme. The trial court rejected use of that factor, noting that the defendant maintained he did not commit the crime and concluding that "[t]his factor would not apply in view of that sworn testimony." Id. The supreme court explained that "entering a plea of not guilty does not preclude consideration by the sentencer of matters relevant to mitigation." Id. And in that context, it explained that a defendant's not-guilty plea "cannot be used against him." Id. It stopped far short of holding that any consideration regarding lack of remorse requires resentencing. In fact, the Holton decision affirmed the death sentence, concluding that any sentencing error was harmless. Id. at 293.

One final observation: We are troubled by any suggestion that judges inclined to consider impermissible sentencing factors could avoid reversals by curtailing their explanations. A judge who silently relies on improper factors violates the constitution no less than a judge who does so loudly. Rather than counsel judges to stay quiet when violating defendants' constitutional rights, we ought to insist judges not violate defendants' constitutional rights at all. And we can better review sentences for constitutional violations when judges explain themselves. Cf. Grayson , 438 U.S. at 44, 98 S.Ct. 2610 (quoting sentencing court) ("I'm going to give my reasons for sentencing in this case with clarity, because one of the reasons may well be considered by a Court of Appeals to be impermissible; and although I could come into this Court Room and sentence this Defendant to a five-year prison term without any explanation at all, I think it is fair that I give the reasons so that if the Court of Appeals feels that one of the reasons which I am about to enunciate is an improper consideration for a trial judge, then the Court will be in a position to reverse this Court and send the case back for resentencing."); United States v. Brown , 479 F.2d 1170, 1173 (2d Cir. 1973) (noting, in sentencing context, that "[a] Sphinx-like silence on the court's part precludes anyone (including the parties, the judge, and an appellate tribunal) from learning whether he acted in error").

B.L. Thomas, C.J., concurring.

No one has a constitutional right to be remorseless about committing crimes, as well documented in footnote 2 of the majority opinion. And under specific legislative authorization in the Criminal Punishment Code, a trial court can impose the maximum statutory penalty on a remorseless convicted criminal defendant or any other convicted criminal defendant for a non-capital felony. See § 921.002(1)(g), Fla. Stat. (2017) ("The trial court judge may impose a sentence up to and including the statutory maximum for any offense ....") (emphasis added). Judicial precedent to the contrary, and those opinions consistent with that precedent, contravene this specific legislative authority in violation of the separation of powers enshrined in our organic law in Article II, section 3, of the Florida Constitution. See Booker v. State , 514 So.2d 1079, 1081-82 (Fla. 1987) ("The rule in Florida historically has been that a reviewing court is powerless to interfere with the length of a sentence imposed by the trial court so long as the sentence is within the limits allowed by the relevant statute.").

In addition to authorizing trial courts to impose the maximum penalty on a convicted felon for any reason, which necessarily includes the lack of remorse, the Legislature has authorized trial courts to treat a remorseful convicted criminal defendant more leniently. See § 921.0026(1), (2)(j), Fla. Stat. (2017) ("A downward departure from the lowest permissible sentence ... is prohibited unless there are circumstances or factors that reasonably justify the downward departure ... [including where] [t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. ") (emphasis added).

In enacting the Criminal Punishment Code, the Legislature specifically rejected prior policy that limited trial courts' sentencing discretion. Thus, the majority opinion does not violate the holding of Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), as prior cases that interpreted different sentencing laws have no application to unfettered felony sentencing under the Code.

Prior judicial decisions commanding trial courts to ignore a convicted criminal defendant's lack of remorse or refusal to accept responsibility not only contravene legislative policy, the rationale of those decisions flies in the face of common sense, human decency, and civilized norms. See, e.g. , Joreski v. State, 288 P.3d 413, 417-18 (Wyo. 2012) (holding trial court did not commit plain error in considering the defendant's lack of remorse and flippancy about chronic sexual abuse of defendant's daughter when imposing sentence, and Wyoming law allows consideration of failure to accept responsibility). In Wainwright v. Goode, 464 U.S. 78, 79, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983), for example, the defendant "was 'extremely proud of having murdered [and sexually assaulted ten-year-old] Jason 'for the fun of it' " and had " 'absolutely no remorse' over the murder" and "would do it again if given the chance." Contrary to the decisions that would command sentencers to ignore this lack of remorse, the Supreme Court held that the Florida Supreme Court did not violate the Eighth Amendment by affirming the trial court's consideration of this nonstatutory aggravating factor. Id.

The well-reasoned majority opinion correctly notes that this court and other district courts have unjustifiably limited trial courts' sentencing discretion in non-capital felonies by expanding the rule from the capital case of Holton v. State, 573 So.2d 284, 292 (Fla. 1990), regarding a defendant's assertion of innocence in the context of "consideration by the [capital] sentencer of matters relevant to mitigation." The majority opinion correctly distinguishes cases where the supreme court addressed capital sentencing or pre-Criminal Punishment Code sentencing, both of which entail sentencing statutes that preclude enhanced sentences, absent very limited and specific considerations. See § 921.141(3)(a)(2), Fla. Stat. (2017) ("If the jury has recommended a sentence of ... [d]eath, the court ... may consider only an aggravating factor that was unanimously found to exist by the jury ") (emphasis added); § 921.001(5), Fla. Stat. (1989) ("The failure of a trial court to impose a sentence within the sentencing guidelines shall be subject to appellate review .... A departure sentence shall be based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence") (emphasis added).

The majority opinion correctly recedes from prior precedent that improperly limits trial courts' lawful sentencing discretion in violation of the separation of powers. Therefore, I fully concur in the majority opinion.

Kelsey, J., concurring in result.

I concur in the disposition of Appellant's arguments, and in certifying a question to the Florida Supreme Court. The issues we address today merit the supreme court's consideration. I dissent from our receding from precedent, however, because I conclude that supreme court precedent binds us; and if so, only the supreme court can release us. Hoffman v. Jones , 280 So.2d 431, 433-34 (Fla. 1973). Just as all of the district courts have done, the supreme court has announced and followed a broad rule that lack of remorse should not be considered in sentencing:

Unfortunately, remorse is an active emotion and its absence, therefore, can be measured or inferred only from negative evidence. This invites the sort of mistake which occurred in the case now before us-inferring lack of remorse from the exercise of constitutional rights. This sort of mistake may, in an extreme case, raise a question as to whether the defendant has been denied some measure of due process, thus mandating a remand for reconsideration of the sentence. For these reasons, we hold that henceforth lack of remorse should have no place in the consideration of aggravating factors.

Pope v. State, 441 So.2d 1073, 1078 (Fla. 1983) ; see also State v. Mischler , 488 So.2d 523, 526 (Fla. 1986) (holding, in guidelines departure analysis in a non-death case, that "lack of remorse to support a departure sentence cannot be inferred from either the mere exercise of a constitutional right or a continuing assertion of innocence"), superseded by statute on other grounds, ch. 87-110, § 2, and ch. 93-406, § 13, Laws of Fla., as recognized in Banks v. State, 732 So.2d 1065, 1068 n.8 (Fla. 1999).

The supreme court addressed the same issues in Beasley v. State , 774 So.2d 649 (Fla. 2000), a death case, quoting with approval the Fourth District's remorse analysis in Mischler , a non-death case:

"Remorse" is defined in Webster's Third New International Dictionary 1921 (1993), as "a gnawing distress arising from a sense of guilt for past wrongs (as injuries done to others)." Given this definition, as the Fourth District (in discussing why a defendant's lack of remorse which is not "repugnant, odious and accompanied by a confession," cannot be used as a reason to depart from sentencing guidelines) queried,

How can one be expected to show remorse concurrently with the maintenance of innocence? Nor does a jury guilty verdict [sic] automatically extinguish the right to continued proclamation of blamelessness. Moreover, even if it did, defendants at sentencing could avoid aggravation by simply declaring their innocence and gratuitously expressing sorrow for the victim.

Mischler v. State, 458 So.2d 37, 38 (Fla. 4th DCA 1984), approved, 488 So.2d 523 (Fla. 1986). As observed in Robinson v. State, 520 So.2d 1, 6 (Fla. 1988), a lack of remorse is not considered an aggravating factor in death penalty cases. While "[a]ny convincing evidence of remorse may properly be considered in mitigation of the sentence," the absence of remorse "should not be weighed either as an aggravating factor [or] as an enhancement of an aggravating factor." Pope v. State, 441 So.2d 1073, 1078 (Fla. 1983).

Beasley , 774 So.2d at 672 ; see also, e.g. , Fletcher v. State , 168 So.3d 186, 212-13 (Fla. 2015) (describing as "axiomatic" that State cannot assert lack of remorse as an aggravating factor, but finding the error harmless where it was injected through an improper question and answer from State's psychological expert); Cromartie v. State , 70 So.3d 559, 562-63 (Fla. 2011) (distinguishing between errors in sentencing process, and sentence imposed, in non-death case, and approving district court's fundamental-error analysis and conclusion that trial court's emphasis on defendant's failure to take responsibility constituted denial of due process in sentencing). Generally to the same effect is Holton v. State, 573 So.2d 284, 292 (Fla. 1990), which the majority discusses. The bottom line is that we must await the supreme court's modification of the governing case law before we adopt a different law for our district and create conflict with the rest of the State.

On the merits, I conclude that we can and should affirm Appellant's sentence because, considered in context, and even with no clarification or modification of existing law, this sentence was not the product of punitive reliance on Appellant's assertion of innocence. My concern is for clarifying the analytical process involved-that of drawing the line between proper sentencing considerations and improper punishment of the exercise of constitutional rights. Cf. Burns v. State, 43 Fla. L. Weekly D1569, --- So.3d ----, 2018 WL 3371723 (Fla. 1st DCA July 11, 2018) (certifying question of great public importance regarding scope of proper consideration of defendant's lack of remorse for crime of conviction, and noting two district court judges' concurring opinions advocating for supreme court review of the rule against considering lack of remorse), review granted, No. SC18-1208, 2019 WL 76628 (Fla. Jan. 2, 2019). This analytical process, like many mental processes in which judges at all levels engage every day, takes longer to write out than to do. This analysis should be happening under existing law, and would be required under the majority's approach as well. Because constitutional rights are at stake, the effort seems worthwhile.

I. Detailed Pre-Sentence Context

Presentence Investigation Report. Immediately after the jury rendered its verdict, the State requested, and the trial judge ordered, a presentence investigation report, because the State had filed a habitual felony offender motion. The PSI was filed with the trial court and, on Appellant's motion, included in the record on appeal. It included Appellant's prior record as required by law. § 921.231(1)(c), Fla. Stat. (2016). Appellant's PSI reflects a prior history of ten felony convictions as an adult and eleven adjudications of guilt as a juvenile (following five juvenile cases in which adjudications were withheld). The disposition recommendation in the PSI was as follows:

The defendant has an extensive prior criminal history which includes numerous violent offenses. The defendant has had opportunities to rehabilitate, however apparently chooses to continue to engage in criminal behavior. The defendant also appears to have a history of gang related activity. The defendant apparently continues to be a threat to the safety of the community. It is therefore respectfully recommended that he be sentenced to the maximum amount of incarceration allowed by the sentencing guidelines.

Prosecutor's Comments. At the sentencing hearing, the prosecutor gave the judge Appellant's criminal punishment code scoresheet. That scoresheet listed eleven prior offenses: one prior first-degree felony punishable by life (armed robbery with a firearm); five second-degree felonies (attempted second-degree murder, attempted armed robbery with a firearm, discharging firearm on school property, aggravated battery with a deadly weapon, and aggravated assault on a law enforcement officer); four third-degree felonies (aggravated assault with a deadly weapon, resisting officer with violence, felony battery, and battery on a law enforcement officer); and one unspecified misdemeanor. The prosecutor discussed the length of the criminal scoresheet and its inclusion of numerous violent offenses including multiple firearms offenses. The prosecutor argued that Appellant's history justified imposition of the statutory maximum sentence of fifteen years in prison with three years minimum mandatory for actual possession of a firearm. The prosecutor noted that the evidence of guilt was clear, that Appellant had an extensive "violent history," and that the new offense was a flagrant violation of the law, the flagrancy arising out of the fact that Appellant clearly knew of his own felony history and thus knew he should not have possessed a gun (emphasis added):

And, Your Honor, in looking at the defendant's score sheet, it's quite long and importantly it's filled with violent offenses, a number of them including firearms.... Based on that violent history , based on him yet again possessing a firearm when he knows he's a convicted felon, .... The State is asking for the statutory maximum of 15 years in the Department of Corrections, with a three-year minimum mandatory for actual possession of a firearm. We believe that's the only appropriate sentence given the defendant's flagrant running afoul of the law, yet again with a firearm, despite an extensive violent history .

Defense Counsel's Comments. Defense counsel acknowledged that Appellant "has a significant history and it's not something that we can deny." (Emphasis added.) The defense requested a ten-year sentence as one that would be "substantial and significant ... for someone who unfortunately has been incarcerated for most of his life."

Appellant's Comments. In an allocution to the court filling nearly three pages of the transcript, Appellant denied that he possessed or even knew about the gun in the car. He argued that the juvenile driving the car blamed Appellant in order to receive-and then actually received-a more lenient charge arising out of the drug paraphernalia also found in the car. Appellant argued that the evidence was clearly not sufficient to convict him, and that he was convicted because his lawyer did not do a good job. He stated he would apologize if he had done anything wrong, but did nothing wrong, was not guilty, and was innocent:

If I did anything wrong, or said anything that's inappropriate, I would apologize. Right now, and I ask-I would be asking for leniency, but I did nothing wrong. I am not guilty of the charge that I'm accused of. I am innocent.

Appellant continued to argue the evidence for another page and a half of the transcript, asserting that his counsel failed to protect his interests.

Trial Judge's Comments. Immediately after Appellant discussed his view of the evidence and his lawyer's performance, the trial judge stated as follows, making the emphasized comments that give rise to Appellant's second argument on appeal (emphasis added):

Mr. Davis, quite frankly we're not here to retry the facts of the case. I heard the evidence. It was put before a jury and they found beyond a reasonable doubt that you are guilty of the charged offense. And from my review of the evidence, and from what I heard in the courtroom and the testimony and the evidence provided, quite frankly I think they got it right.

And I can see here by your score sheet, you have an extensive violent history here and a lot of it involves a firearm. We have a second degree murder, attempted second degree murder, attempted armed robbery with a firearm, armed robbery with a firearm, aggravated assault with a deadly weapon, discharging a firearm on school property, aggravated battery with a deadly weapon, battery on a law enforcement officer, felony battery. Just a violent, unfortunate history that we're dealing with. And a lot of it involves a firearm. And now we have a new offense that involves a firearm again.

And quite frankly, you know, they found you with the firearm before any harm could come of it, because who knows what would have happened[ ]... if there was an opportunity to use that firearm in the future. And so that is one of the good things that came out of it was that there wasn't that opportunity.

You still fail to take any responsibility for your actions. And 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 in the Department of Corrections, which is the statutory maximum.

Counsel did not object to the trial judge's comments or his use of the word "responsibility."

The trial judge's final emphasized comments raise the following questions: (A) Is it fundamental error for a sentencing judge to reference a defendant's failure to "take responsibility"?; and (B) If so, how are courts to determine when such comments are impermissible and require resentencing? The issue is whether Appellant's constitutional rights were violated, and therefore our review is de novo. Cromartie , 70 So.3d at 563.

II. Legal Analysis

(A) "Responsibility" and "Remorse"

First, courts need to be clear in using the words "responsibility" and "remorse." "Responsibility" means "the quality, state, or condition of being answerable or accountable." "Remorse" means "a strong feeling of sincere regret and sadness over one's having behaved badly or done harm; intense, anguished self-reproach and compunction of conscience, esp. for a crime one has committed." Responsibility; Remorse, BLACK'S LAW DICTIONARY (10th ed. 2014). See also Beasley , 774 So.2d at 672 (quoting another dictionary definition of "remorse" as "a gnawing distress arising from a sense of guilt for past wrongs (as injuries done to others)") (citations omitted).

In this case, the sentencing judge said only "responsibility," not "remorse." Both words could refer to valid sentencing factors. Both words could refer instead to a defendant's refusal to admit guilt and display regret for the crime of conviction. Some sentencing judges appear to use these words interchangeably, while others appear to intend different meanings. In short, these words are inherently ambiguous (unlike, for example, explicit references to a defendant's race, gender, age, or faith), and the context of their use in sentencing can be ambiguous.

Courts cannot punish defendants for exercising their constitutional rights to remain silent, maintain innocence, and go to trial on the pertinent crime of conviction. Holton , 573 So.2d at 292 (holding courts cannot penalize defendants for exercising their constitutional rights); see Amends. V (silence), VI (trial), U.S. Const.; Art. I §§ 9 (silence), 22 (trial), Fla. Const. These rights exist at all stages of a criminal proceeding "because due process guarantees an individual the right to maintain innocence even when faced with evidence of overwhelming guilt. A trial court violates due process by using a protestation of innocence against a defendant." Holton , 573 So.2d at 292. We must determine whether constitutional rights have been violated.

On the other hand, sentencing courts can consider and rely upon factors such as defendants' prior criminal convictions, character, likelihood of rehabilitation or recidivism, the deterrent effect of punishment, and danger to others upon release. § 921.002(1)(d) ("The severity of the sentence increases with the length and nature of the offender's prior record."); see § 921.231(1)(m) (mandating that presentence investigation report include, among other things, explanation of the offender's criminal record and offender's explanation of prior offenses); § 948.015 (same PSI contents for non-state-prison sanctions). We must respect the validity of these sentencing factors and the proper exercise of judicial discretion.

(B) Contextual Analysis

1. Precedential Support

Given our competing obligations to protect constitutional rights and to allow sentencing judges to consider appropriate factors, we must apply a contextual analysis to determine whether impermissible punishment has occurred. As we have held previously, a sentencing court's mere use of the words "remorse" or "responsibility" is not per-se reversible error:

While it is fundamental error to punish a defendant for exercising his or her constitutional rights, we decline to hold that any mention by a sentencing judge of a defendant's claim of innocence or failure to "take responsibility" during a sentencing hearing automatically renders the sentence an infringement of the defendant's constitutional right to maintain one's innocence.

Hayes v. State , 150 So.3d 249, 252 (Fla. 1st DCA 2014) ; see also Burr v. Pollard, 546 F.3d 828, 832 (7th Cir. 2008) ("[T]he constitution is not violated by a mere slip of the tongue.").

In Hayes , factually similar to this case, we concluded that the sentencing judge did not base the sentence on impermissible factors where, after stating multiple times that the defendant failed to take responsibility or show remorse despite the jury's guilty verdict, the court expressly denied punishing the defendant for maintaining his innocence, and imposed a guidelines sentence with a mandatory minimum. 150 So.3d at 250-52. We noted that the court's comments were in the context of reviewing the defendant's extensive criminal history and pattern of violations. Id. In doing so, we necessarily evaluated the trial court's comments in their larger context.

Rather than reverse a sentence reflexively if the sentencing judge speaks ambiguous buzz words, we must evaluate sentencing comments fairly and reasonably, with a thoughtful fact-specific and contextual inquiry that is sensitive to both the defendant's constitutional rights and the trial court's authority and discretion in sentencing. A reasoned analytical approach to the issue is feasible, promotes clarity and uniformity, and is frequently performed already. E.g. , Oliver v. State, 214 So.3d 606, 615-16 (Fla. 2017) (considering context of prosecutor's comments on lack of remorse, the brevity of the reference, and the unlikelihood that the single comment affected the outcome); Catledge v. State, 255 So.3d 937, 940-41 (Fla. 1st DCA 2018) (considering context to determine that comments related to mitigation); Burns, --- So.3d at ----, 2018 WL 3371723 at *2 (noting necessity of reviewing sentencing comments in context); Allen v. State , 211 So.3d 48, 52 (Fla. 4th DCA 2017) (setting forth several contextual considerations guiding the court's analysis of "whether appellant's sentence was improperly influenced by his failure to admit guilt"); Godwin v. State, 160 So.3d 497, 498 (Fla. 2d DCA 2015) (evaluating comments in context to conclude they properly related to mitigation); Torres v. State, 124 So.3d 439, 442 (Fla. 1st DCA 2013) (considering context as indicating sentence was based at least in part on impermissible factors and court could not conclude the sentence would be the same regardless); Aliyev v. State, 835 So.2d 1232, 1235 (Fla. 4th DCA 2003) (evaluating context of judge's comment about defendant's courtroom outburst to determine whether it referred to improper factor, and concluding there was no error especially where sentence was lenient); Harden v. State, 428 So.2d 316, 317 (Fla. 4th DCA 1983) (interpreting court's comments as "clearly" referring to defendant's failure to confess); see also United States v. Espinoza , 550 F. App'x 690, 695 (11th Cir. 2013) (quoting United States v. Webb , 139 F.3d 1390, 1394-95 (11th Cir. 1998), as interpreting sentencing judge's ambiguous comments according to the rationale "more strongly" suggested by the record).

2. Applying Contextual Analysis

The cases already cited, and many similar to them, embody the principle that we must look beyond mere words spoken, and evaluate the context to determine whether the words evidence an improper reliance on the exercise of constitutionally-protected rights. In this regard, courts need to be clear about their verbs: "consideration of" and "reliance on" are not the same thing.

It is only a punitive reliance on improper factors in sentencing that is improper. We must evaluate the context to determine whether a sentencing judge relied on an improper factor resulting in an infringement of the defendant's constitutional rights.

The Fourth District in Allen articulated an analytical test specific to the facts of that case, where the trial judge engaged in a protracted colloquy with the appellant in an express attempt to extract a confession of guilt as a quid pro quo to imposition of a more lenient sentence. 211 So.3d at 51-52. The court considered first whether the appellant had maintained his innocence after conviction, how the trial court attempted to elicit an admission of guilt and the degree of coercion the court used, and whether the court expressly or impliedly offered a more favorable sentence in exchange for an admission of guilt or remorse. Id. Examining the context, the court concluded that the trial judge improperly relied on the appellant's "unrelenting insistence of innocence" in determining the sentence. Id. at 52.

The judge's comments here are quite different from those in Hayes and Allen . The contextual lead-in to the sentencing comments begins with the PSI's long list of prior convictions and recommendation of a harsh sentence because of the obvious ineffectiveness of leniency and the likelihood of recidivism. This is followed by counsel's handing Appellant's scoresheet to the judge, and both counsel then describing the scoresheet as involving a lengthy "history" of violent crime and firearms offenses. One can readily envision that the trial judge was quite literally holding up the scoresheet as he addressed Appellant with reference to his "history"; but we need not be in the courtroom or have a video of the sentencing hearing to conclude, entirely reasonably and without presuming that the trial judge intentionally or negligently relied on an improper sentencing factor, that this judge was commenting on Appellant's criminal history and his lawless character-valid sentencing considerations in the view of every judge on this Court. The comments at issue occurred after the judge's consideration of Appellant's PSI, CPC scoresheet, and emphasis on Appellant's criminal history by both the prosecuto