Pehlke v. State, 189 So. 3d 1036

Jeremy Pehlke was convicted by a jury of fleeing to elude a law enforcement officer with lights and sirens activated.
At trial officers testified Pehlke sped in a school zone, ignored a traffic stop, and almost hit an officer before being stopped; Pehlke testified in his own defense.
At sentencing the court noted Pehlke "declined to say anything" in the PSI interview and asked him twice if he wished to speak; Pehlke replied he had nothing to say and declined to discuss the offense.
The State recommended six months in jail followed by two years probation; the court rejected that recommendation and imposed a nine-month jail term.
The sentencing judge expressly relied on Pehlke’s lack of remorse for the offense when imposing a harsher sentence.
The State conceded, and the court agreed, that considering Pehlke’s failure to express remorse (or his protestations of innocence) was fundamental error violating due process; the sentence was reversed and remanded for resentencing by a different judge, while the conviction was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentencing court committed fundamental error by considering defendant's lack of remorse	Pehlke argued the court violated due process by penalizing his silence and right to maintain innocence	State conceded the court improperly considered lack of remorse and that the sentence must be reversed	Court held the consideration of lack of remorse was fundamental error; sentence reversed and remanded for resentencing by a different judge

Smith v. State, 62 So. 3d 698 (Fla. 2d DCA 2011) (recognizing fundamental error where sentencing court considered lack of remorse or protestations of innocence)
Brown v. State, 27 So. 3d 181 (Fla. 2d DCA 2010) (same principle regarding sentencing reliance on defendant's silence or lack of contrition)
Bracero v. State, 10 So. 3d 664 (Fla. 2d DCA 2009) (holding due process protects a defendant's right to maintain innocence and court may not penalize that at sentencing)