Florida Third District Court of Appeal – Criminal Headnotes – June 20, 2018
BARBARA STONE V. STATE OF FLORIDA – UPWARD DEPARTURE SENTENCE; LACK OF REMORSE
Direct appeal from sentencing for probation violation after adjudication had been withheld for a non-forcible third-degree felony.
The defendant argued the trial court had erred in making an upward departure from the sentence indicated by the scoresheet because it found her statements and conduct at the sentencing hearing indicated a “lack of remorse.” The appeals court agreed with defendant, citing Green v. State, 84 So. 3d 1169 (Fla. 3d DCA 2012), and other decisions holding “lack of remorse, the failure to accept responsibility, or the exercise of one’s right to remain silent at sentencing may not be considered by the trial court in fashioning the appropriate sentence.”
Remanded for resentencing before a different judge.
SERGIO M. HERNANDEZ, III V. STATE OF FLORIDA – COMPETENCY TO STAND TRIAL; STIPULATION; INDEPENDENT DETERMINATION
Direct appeal from conviction and sentencing for domestic battery by strangulation and false imprisonment.
The defendant argued the trial court had failed to make an independent assessment and determination of his competency to stand trial. At the pretrial competency hearing, defense counsel and the state stipulated that the appointed expert would testify, consistently with his written report, that he had found the defendant competent. However, there was nothing in the record to indicate that the trial court had reviewed the report, or that it had made an independent assessment of the defendant’s competency.
Citing Dougherty v. State, 149 So. 3d 672 (Fla. 2014), and Shakes v. State, 185 So. 3d 679 (Fla. 2d DCA 2016), the appeals court said the question of a defendant’s competence to stand trial cannot, consistent with due process, be stipulated, but must be independently determined by the trial court.
Reversed and remanded. On remand, if the trial court can make a retrospective determination that the defendant was competent to stand trial, it should enter an order nunc pro tunc to that effect. If it determines that the defendant was not competent, or if it finds that it cannot make a retrospective determination, the trial court is to order a new trial.
CARLOS G. BERTONATTI V. STATE OF FLORIDA – INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Appeal from the denial of a motion to vacate a guilty plea to charges of DUI hit and run manslaughter, resisting an officer without violence, and fleeing or attempting to elude a law enforcement officer where lights and sirens had been activated.
The defendant alleged his trial counsel was ineffective in allowing him to enter an open plea without insisting on DNA testing of the blood samples indicating an elevated level of alcohol, to confirm this was in fact his blood. The trial court had rejected this argument.
The appeals court affirmed, finding that the defendant had failed to demonstrate that but for the claimed error he would in fact have insisted on going to trial. The record confirmed that the defendant himself had knowingly waived DNA testing of the blood samples, and there was ample evidence apart from the blood alcohol level, to establish that he had been intoxicated at the time of the offense.