Green v. State
84 So. 3d 1169
| Fla. Dist. Ct. App. | 2012Background
- Alexander Green was convicted of manslaughter in Florida.
- The district court affirmed the conviction but vacated the sentence and remanded for a new sentencing hearing before a different judge.
- At the sentencing hearing, Green remained silent after a statement by the victim's parents and after defense counsel anticipated a Fifth Amendment invocation.
- The trial court stated a 30-year sentence and indicated that Green’s silence demonstrated lack of remorse, influencing the sentence.
- The court cited due process concerns and held that punishment for exercising a right to remain silent is barred; however, a remand for resentencing was required due to the improper factor.
- Green is entitled to be present at the new sentencing hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May silence at sentencing be used as a sentencing factor? | Green argues silence is an improper sentencing factor. | State argues it may be considered as part of overall mitigation/weight in sentencing. | Silence cannot be used to punish or penalize at sentencing. |
| Does using silence to infer lack of remorse violate due process? | Green contends it violates due process and Fifth Amendment protections. | State contends no due process violation in evaluating remorse as part of sentencing considerations. | Yes; it violates due process to condition sentence on silence or lack of remorse. |
| Whether resentencing is required and must occur before a different judge. | Green seeks resentencing; argues for a new sentencing hearing before a different judge. | State contends resentencing is not necessarily required before a different judge. | Remand for a new sentencing hearing before a different judge is required. |
Key Cases Cited
- Holton v. State, 573 So.2d 284 (Fla. 1990) (due process prohibits punishing a defendant for exercising the right to remain silent)
- Mentor v. State, 44 So.3d 195 (Fla. 3d DCA 2010) (reminder that remorse evidence is a mitigating factor; various related considerations)
- Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004) (silence/remorse as sentencing considerations; limitations)
- A.S. v. State, 667 So.2d 994 (Fla. 3d DCA 1996) (remorse/acceptance of responsibility and sentencing)
- Fla. v. Whitmore, 27 So.3d 168 (Fla. 4th DCA 2010) (remarks on sentencing factors and remorse)
- Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009) (comparison of sentencing considerations)
- Ritter v. State, 885 So.2d 413 (Fla. 1st DCA 2004) (contexts of sentencing and remorse considerations)
- K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001) (remorse and sentencing departure discussions)